TCS Daily


Florida's Other Disasters: Floods and Lawyers

By Patrick Cox - October 11, 2004 12:00 AM

Lake Griffin, Florida -- Like the dog that didn't bark, the most important and overlooked story of this year's record-breaking hurricane season may be the flooding that didn't happen in Florida.

Even most residents of the state seem to have forgotten, if they ever knew, that Florida has much in common with the Netherlands. The vast majority of South Floridians live in areas -- from Orlando through Ft. Lauderdale to Miami -- that would be largely uninhabitable without ubiquitous drainage canals and other day-to-day flood control measures. Where now live seven million people, it is unlikely that two million could live if the Florida peninsula were allowed to return to its natural state.

We, however, have grown so accustomed to being protected that many now accept and even support environmentalist ideologues who are trying to frustrate, through the courts, the state's ability to prevent flooding, as it successfully did this year. Nor will their impact, if they are successful, be limited to the Sunshine State -- as case precedent will provide a powerful new tool for activist litigators across the country.

Getting 'Caned

I was lucky, I suppose, to have been spared the fate suffered by my nearest neighbors here on this central Florida island in Lake Griffin. Hit hard by both Francis and Jeanne, three of the ten homes built on this 25-acre high point in the swamp were badly damaged, one completely. It's getting harder and harder to feel lucky, however, nearly a month later and still without electricity or Web access.

The sustained winds brought by Frances, when it passed through the center of the state Labor Day weekend, were still strong enough to blow the grapefruit off our trees. It was probably some sort of localized phenomena, though, that did the real damage, felling a succession of Florida pine trees in relatively straight lines across the island. Most were well over a hundred years old and at least 85-feet tall, their trunks shattered about ten feet above the ground.

If there were a working land line in the cabin my family is using while we wait for services to be restored to our home, it would be a simple matter to google the scientific term for these hyper-winds that form on the lake, but they tell me I won't get electricity back for several more weeks. It's an interesting sign of these new tech times that Web access is now on my short list of missing amenities, along with power and sewer services. In the meantime, I impose occasionally on friends to send and read e-mail, but little else.

Looking to the left from my front porch, past the fallen pine that missed the corner of our house by only a few feet, is the wreckage of a two-story home. Its roof is splintered by a tree nearly a yard thick at its base. The sofa where my neighbor had been sitting, only minutes before heading for his basement, is crushed flat by a single limb.

Six more pines, two toppled by Francis and four by Jeanne, now rest on my property. One, a bald eagles' roost, contained a nest big enough for a grown man to lie in, now scattered on the ground under broken branches. The adult eagles have come back and are shrieking normally, though I can't say if their young survived.

Two more pines fell on my neighbor to the right during Frances. One is still leaning against the roof at about a 45 degree angle and another smashed the electrical box through which power for both our homes ran. We think the county has finally issued the permit we need to make repairs, but tens of thousands around here had their power interrupted by Jeanne since then, so we've probably been relegated to the bottom of the list again while more populated subdivisions are restored.

Before the first hurricane of the season, Charlie, hit Florida, projections had the storm making landfall on the Gulf Coast around the Tampa, St. Petersburg area, then passing northwest into the center of the state almost directly over this island. Like most people around here, we assumed the storm would be weakened significantly before reaching us, so we hunkered down. In Florida, by the way, the verb "hunker" is used almost exclusively to describe the act of not evacuating when you are in the probabilistic cone of a hurricane track.

At the last minute, of course, we experienced the limitations of meteorological computer modeling. Charlie veered east early and chased the Tampa, St. Pete evacuees all the way across the state to Orlando where so many had sought refuge, doing major damage all the way. For those not hit directly, the primary impact of the storm was to drive home just how dangerous such storms could be even to the center of the state.

"Next time," I heard over and over, "we're leaving."

Next time -- in the form of Hurricane Frances -- appeared in the Atlantic within days. With video of Charlie's destruction fresh in mind, we packed the kids into the minivan and took the familiar route south to Miami to wait out the storm.

"The Great Pyramid of Environmental Projects"

On the way, I paid attention, for the first time, to the pump stations built into the three-story-high levee that contains the second largest lake in America -- Lake Okeechobee. The stations are house-sized concrete structures, with a distinctly military appearance, that contain the high-capacity pumps that move water into the lake and prevent the surrounding towns and fields from returning to swamp status.

I had started, even before this hurricane season, doing research for the Competitive Enterprise Institute, a Washington, DC-based free market think tank, and Florida's James Madison Institute on the S-9 lawsuit. The term "S-9" refers to an important flood control pump station on a Broward County levee along the eastern edge of the Everglades.

The suit was brought by a coalition of environmentalists and the Miccosukee, the native-American tribe well-known for operating a successful casino just outside Miami. S-9 challenges the right of the South Florida Water Management District, the agency that administers water policy for all of south Florida and manages the Everglades restoration project, to move water within the system without federal permission.

For those not familiar with the Everglades restoration, it is nothing less than the Great Pyramid of environmental projects -- the largest, most ambitious public works and ecosystem alteration enterprise in the history of the world. It's purpose is to reverse over a century of swamp draining and canal building that has transformed the face of south Florida from the marshland it once was to one of the most popular and populated regions in the nation. Officially, the cost estimate for the project is $8.4 billion, to be split between federal and Florida taxpayers. Insiders, however, admit the figure is low-ball, because the number is in unadjusted 1999 dollars and the real estate yet to be acquired is in the most developable areas of the state, such as the south-east Atlantic "gold" coast where prices are skyrocketing.

Despite a general perception that the Florida peninsula's environment was destroyed by business interests, especially big agriculture, private enterprise actually failed repeatedly to turn the Everglades into usable land. Only when government involved itself did the effort to dry out Florida real estate meet with any real success.

FDR's New Deal program, in particular, provided the massive funding needed to do what is currently being undone, partially at least, by more than ten thousand people from various state and federal agencies, including the organization that does all the really big public works projects -- the Army Corp of Engineers. In this there is some symmetry, at least, as the Corps played such a major role in eliminating the wetlands we are currently trying to replicate.

A system of free enterprise and property rights would have actually preserved the Everglades. If market forces and the test of profitability had been allowed to determine land usage in South Florida, the current landscape would resemble prehistoric Florida far more than a "restored" Everglades ever will.

At this point, however, the challenge to Everglades restoration administrators is to recreate as much of the swampland as possible without uprooting the millions of people now living in areas that were either dried out or protected from recurrent flooding by government drainage projects. More than 18,000 square miles in sixteen Florida counties are substantially affected by the restoration project, and four million acres, half the territory covered by the prehistoric Everglades, are to be acquired, restored and managed in terms of water quality and quantity as well as seasonal fluctuations.

Complicating that already leviathan task is the fact that water district administrators have a concurrent obligation to prevent storm-related flooding -- once a reliable killer whenever hurricanes struck the state. A single storm alone, in 1928, drowned between 2,500 and 3,000 people, at a time when the entire state population was less than 1.5 million.

"Ecosystem Mis-Management"

On first blush, it might seem odd that environmentalists would bring and support a lawsuit designed to handcuff the agency charged with restoring the "river of grass," but that is what S-9 would do. If successful, the water district would be forced to obtain time-consuming and expensive EPA National Pollutant Discharge Elimination System (NPDES) permits every time it moves water around within the various regions of the Everglades -- which it does constantly as part of efforts to duplicate waterflows that have been permanently altered by past drainage projects that continue to protect South Florida cities and farms.

As the name implies, the NPDES permits were designed for the regulation of sewage plants, stockyards and other "point source" polluters. No one has seriously posited that the Everglades' restoration effort will be enhanced by subjecting ongoing, routine adjustments in hydrological flows to the scrutiny previously reserved for industrial waste water. Rather, it would make such modifications, as well as flood control, difficult if not impossible.

Supporters of the lawsuit, however, are committed to an environmental philosophy, often referred to as "ecosystem management," that seeks to remove, to the greatest degree possible, human influence from protected environments. Their goal, regarding the Everglades, is to acquire and restore every possible inch of the prehistoric wetlands and then abandon it to the forces of nature. For them, a managed ecosystem is an oxymoron, if not sacrilege.

Hands Off

Proponents of this radical, hands-off philosophy are not, as one might expect, insignificant political players. Through a variety of powerful environmental lobbies and highly placed regulatory appointees, they have acquired and exercise serious clout.

One example of their influence was the wresting of Western state forest management policies from old-school conservationists who favor a "multiple use" approach. They successfully blocked, often through lawsuits, the construction of fire roads as well as selective clearing and logging that would have reduced the danger of catastrophic forest fires. Following unnaturally large and destructive wildfires of the last few years -- so hot that forest soils were sterilized and rendered incapable of recovering naturally -- Western voters seem to be turning against those who have championed "ecosystem management."

Elsewhere, however, they still have considerable influence. In Maine and other states, they are seeking to remove dams from river systems, regardless of costs. They have prevented the extraction of resources from a tiny, corner of the Alaskan ANWR preserve, despite minimal ecological impact, escalating petroleum prices and a widespread desire to reduce dependence on foreign oil suppliers.

The same fundamental struggle is taking place in Florida today. Those who oppose an actively managed Everglades, preferring a system untainted by human involvement, see the S-9 lawsuit as a means for taking control of restoration policies. Just as they opposed fire prevention practices in western forests, they opposed the use of any of the district's flood control pumps (not just S-9) to lower Everglades water levels in preparation for this year's storms.

Polluted Water?

Alone, the S-9 suit would provide a powerful tool for activist litigators. Contained within the lawsuit, however, is a scientific assumption that could give environmentalists even greater power to push people and human activities out of targeted areas. This assumption, widely accepted in bureaucratic and environmental circles, is that 10 Parts Per Billion (ppb) of phosphorous qualifies water as polluted.

Trying to track the evolution of the 10 ppb phosphorous definition of pollution is, frankly, futile. There exists absolutely no legitimate research to bolster the notion that water systems should be so devoid of nutrients. On its surface, the theory defies logic.

Phosphorous is not, after all, a poison. It is a naturally occurring and necessary fertilizer that tends to increase the amount of biological activity in a water system. In other parts of the United States, authorities are actively adding phosphorous to streams and other bodies of water that lack the nutrients necessary to support healthy fish and aquatic plant populations.

The 10 ppb phosphorous standard has been around for decades, but only as a rule of thumb for differentiating oligotrophic from eutrophic water systems. Oligotrophic systems are, by definition, relatively free of nutrients and, therefore, aquatic plant and animal life. In the extreme, oligotrophic systems are dead, entirely devoid of life.

Eutrophic systems, on the other hand, are "full of life" -- as the Latin basis for the word implies. It is an indication of how perverted the debate has become that eutrophic is often used by environmentalists and the media as a synonym for polluted. No one who has spent any time in the implausibly verdant Florida swamps can honestly pretend that they are either polluted or oligotrophic.

This does not mean, however, that the water in eutrophic systems necessarily measures high in phosphorous at any given time. Many Florida lake beds, for example, are covered by a foot or more of "muck" that is rich in phosphorous -- deposited by natural rainwater runoff through soils that contain high concentrations of phosphorous rocks. When these lakes are full of plant life, the phosphorous that is absorbed upward into the water is quickly transformed into bio-mass.

When aquatic plants are removed -- either by storms or by government programs that clear lakes of propeller-clogging plants for the benefit of anglers, jet-skiers and boaters -- wind and wave action can then stir up the phosphorous. Without sufficient plant life to absorb the fertilizer, biological carrying capacity is increased. Algae populations grow and other changes in the makeup of lake life occur.

Nevertheless, the S-9 lawsuit is concerned only about the phosphorous content of water flowing into the system. As natural rainwater runoff in Florida often violates the 10 ppb standard several times over, this approach invites the use of legal remedies against those who have nothing to do with the phosphorous content of water that flows from their areas. To put things in perspective, Evian bottled water contains 100 to 200 ppb of phosphorous.

Looking "Upstream"

If the movement of water within the Everglades is subject to the 10 ppb standard, any violation can then be used to force "upstream" remedies. This means regulators can look to the source of that water and regulate or prevent development in increasingly larger areas -- and not just in Florida.

Property rights advocates as well as administrators of flood control and municipal drinking water systems across the country are fearful that S-9 could provide the case precedent environmentalists have long sought to expand, without going through legislative channels, their regulatory reach. They have similarly used the endangered species act to block multi-use resource management policies in many parts of the country.

Leading scientists, however, are extremely critical of the 10 ppb standard. Curtis Richardson, the director of the Duke University Wetlands Center, for example, has said that 10 ppb phosphorous "is a political number ... not backed by science."

Perhaps the most important critics are Daniel Canfield and Roger Bachmann, of the University of Florida's department of Fisheries and Aquatic Sciences in Gainesville. Their opinions are particularly relevant because they were largely responsible for the "point-source" theory of phosphorous loading behind the 10 ppb standard. That theory is, simply, that the significant industrial sources of phosphorous runoff, now banned by law, were leading to major changes in the aquatic eco-systems.

Though they are now attacked by many who once embraced their work, Canfield and Bachmann have produced more than a decade of internationally respected research that challenges the 10 ppb phosphorous level as a legitimate or achievable environmental goal. Their work, in fact, refutes the fundamental notion put forth by environmentalists, and accepted by many government agencies, that the Everglades is an "unproductive" or "oligotrophic" system that needs to be purged of phosphorous and other natural fertilizers. Limiting phosphorous inflow could, he believes, actually starve the Everglades of the fertilizers it requires.

Canfield is outspoken about the corruption of the scientific process by what he calls the "environmental industrial complex." Researchers seeking to debunk the 10 ppb standard have, in fact, been notably unsuccessful winning grants from agencies whose political authority is based on the perception that they are needed to eliminate serious pollution problems. Other areas of scientific debate have seen similar biases demonstrated by grantors, including issues such as global warming and DDT usage.

In an ironic Schumpeterian twist, the very success of the water district, in thwarting cataclysmic floods this terrible storm season, seems to have enabled its own critics. Ultimately, however, the goal of an unmanaged Everglades will fail and then provoke a backlash, even if it succeeds in the short run, because it would mean the return of serious, recurrent flooding. The popular concept of large areas of nature, unaltered by human beings, would quickly lose favor among the South Beach jet set if the Miami airport area were, once again, under three feet of water.

Patrick Cox is a TCS contributor. He will have more reports on S-9 and other environmental stories in the future.


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