Some Encouraging News About Everglades Restoration

by Joel Mintz

August 26, 2010

The past year has certainly had disappointments for people who care about protecting the environment. A major international conference on global climate change yielded no sweeping agreement to reduce greenhouse gases. The United States Senate declined to pass comprehensive climate change legislation, and residents of Louisiana and other states bordering the Gulf of Mexico suffered the ill effects of a long-running, disastrous offshore oil spill. One recent—far more sanguine—development development should not be overlooked, however: the decision of a special district in Florida, the South Florida Water Management District, to purchase a large tract of land for use in the treatment and storage of surface water. The deal was approved by the District earlier this month and cleared one of its final legal challenges on Monday.

The “sugar deal,” as it is known to many Floridians, represents a significant victory for the environmentalists and scientists who seek to protect the fragile, endangered Everglades. Under the plan, the Water Management District will pay $197 million for 26,800 acres of land owned by U.S. Sugar Corporation, a major sugar grower in the Everglades Agricultural Area (EAA) situated south of Lake Okeechobee and north of the “river of grass.” The District was also given an option to purchase the remainder of U.S. Sugar’s EAA property—more than 100,000 additional acres--if and when the District’s property tax revenues increase.

To understand the significance of this major land purchase, one must consider the history of its evolution. In the 1980s and 1990s, when scientists drew up plans to restore the Everglades, they noted the critical importance of converting some of the farmland in the EAA to use as a water treatment and storage area. The problem, as those scientists saw it, was that the water flowing into the Everglades from EAA agricultural operations contained such excessively high levels of nutrient contaminants that it had to be captured and treated. Moreover, under the prevailing arrangement, there was frequently a need to divert oversupplies of water into nearby rivers and the Everglades itself. This situation did (and continues to do) considerable damage to the Calusa and St. Lucie estuaries and to the natural systems of the Everglades themselves.

However, a plan to solve these problems, by condemning and purchasing EAA farmland for use as a surface reservoir and treatment facility, was fiercely resisted by politically influential sugar and citrus growing companies, who were then unwilling to give up any part of their real property to help restore the Everglades. Thus, in the late 1990s, when various stakeholders did the planning to design a Comprehensive Everglades Restoration Program (CERP), the notion of purchasing farmland for use in water storage and water quality improvement was quietly excluded.

The CERP, which was approved by Congress in 2000, was a consensus plan that won widespread support from interest groups in Florida—from environmental organizations to agriculturalists—as well as political leaders from both parties. The Restoration Program incorporated an approach known as “adaptive management,” under which it was understood that particular CERP projects would change and evolve as conditions altered and as more was learned regarding the scientific and technical aspects of Everglades restoration. Rather than call for the removal of any EAA surface land from agricultural use however, the CERP contemplated that large quantities of water would be stored and released underground in a technically novel process, of questionable merit, known as “aquifer storage and recovery.”

Although the CERP was widely viewed as being scientifically sound and promising in most respects, the absence of a land-based water storage and treatment area remained its technical Achilles' heel. Scientists (including a distinguished panel from the National Academies of Science) questioned the viability of the CERP for precisely that reason. They continued to urge that governmental entities acquire tracts of farmland land within the EAA. The sugar industry remained staunchly opposed however; and the state showed scant interest in condemning agricultural property for this salutary purpose.

In 2008, the situation shifted dramatically. U.S. Sugar Corporation, in some financial difficulty, offered for the first time to sell nearly all of its 180,000 acre EAA property to the South Florida Water Management District. After extensive negotiation, the Water Management District, at the urging of Florida Governor Charlie Crist, agreed to make that purchase at a cost of $2.5 billion.

Soon thereafter however, the Water Management District and the state, like much of the rest of the United States, began to suffer the effects of the current economic downturn. Tax revenues fell substantially—at both state and Water Management District levels—and the initial understanding that the District had reached with U.S. Sugar had to be reworked. As economic conditions and revenue amounts continued to decline, both the size of the land purchase and the price to be paid for it were downsized several times. In the end, the amount of land to be purchased, and the cost of it, is as much as the Water Management District can now afford.

Some critics of the District’s farmland acquisition have noted that the amount of money to be paid to U.S. Sugar exceeds, at least modestly, what is probably the current assessed fair market value of the property. Obviously, this is not ideal. Nonetheless, to characterize the sugar deal as a “giveaway to Big Sugar,” as some have done, entirely misses the point. The acreage that U.S. Sugar offered to sell to the Water Management District provided a rare, time-limited opportunity to accomplish a critical environmental goal. Moreover, given the political unacceptability of government use of condemnation authority, in a practical sense a negotiated purchase of the U.S. Sugar property was the only option available to government officials to protect the Everglades and nearby estuaries. While the Water Management District may well be paying some premium for its newly acquired real estate, in view of the necessary and important environmental benefits that this land sale seems likely to yield, its cost to the taxpayers is far from exorbitant.

Concededly, the final version of the sugar deal is imperfect in other respects as well. Full treatment and storage of water flowing out of the EAA may require the use of more land than the Water Management District was able to buy, and there's no certainty that the District will be in a financial position to purchase any additional land from U.S. Sugar over the next decade. Moreover, the agreement has encountered some political opposition.

Nevertheless, notwithstanding its flaws and uncertainties, the South Florida Water Management District’s recent decision to purchase a significant tract of farmland for the storage and treatment of water is a major step forward in the ongoing effort to restore the Florida Everglades. The sugar deal will go a good distance toward rectifying a major flaw in that immense, complicated and time consuming effort. It deserves applause and celebration.

Tagged as: Everglades
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Also from Joel Mintz

Joel A. Mintz is a tenured full professor at Nova Southeastern University Law Center in Fort Lauderdale, Florida.

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