Summary of the 2000 Lake Okeechobee Management Act

House Bill 991, establishing the “Lake Okeechobee Protection Program” passed the Legislature as a result of efforts by Representative Ken Pruitt on May 2 and was signed by the Governor on May 16. The bill took effect upon being signed into law. This bill has been touted as providing the management tools and money needed to turn around decades of polluting that is on the edge of killing Lake Okeechobee. The bill does neither. Instead, it preserves and legalizes the status quo, delegates major responsibility to the state Department of Agriculture to reduce pollution loading from cattle operations, and appropriates a small fraction of the funds needed to prevent the Lake from hypereutrophying.

The legislation addresses three threats to the Lake’s health – watershed phosphorus loading from cattle operations and from deposition of sewage sludge, internal phosphorus buildup within the Lake, and littoral vegetation damage from exotics and high water levels. However, the bill is primarily a device to preserve the status quo while promising yet another plan, this one to be formulated in five years. While the legislation comes with an appropriation of more than $38 million, this amount is a tiny fraction of the funds needed to acquire land and build storage and water treatment facilities.

It has been well known since 1976 that cattle operations (beef cattle on improved pasture and dairy cattle) are polluting the Lake with run-off containing very high nutrient levels. These conclusions were clearly set out in a study commissioned by the legislature in 1973. The product of this work was the Final Report of the Special Project to Prevent Eutrophication of Lake Okeechobee (1976). Since then, the 1987 SWIM Act was passed, which called for reduction to an average phosphorus loading of 397 tons per year into the Lake within five years. Since then farming interests have profoundly influenced the implementation process, and the existing rules and practices do not even approach this goal. As a result, fish populations are in steep decline, as are other indicators of environmental health. Young largemouth bass and black crappie populations have been reduced by almost 80% from past levels. Natural water grasses are being choked out, destroying habitat for a wide range of species. Wading bird populations have dropped 70% since the 1980s.

In 1999, a huge discharge of polluted Lake water was directed down the St. Lucie canal and River. Shortly thereafter, a massive fish kill occurred, and fish in the St. Lucie estuary appeared with large, usually fatal lesions on them. This ecological disaster called out for immediate action to rescue Lake Okeechobee. However, at its core, the Pruitt bill provides only that a plan to deal with the problem will be developed in five years. It is a reiteration of the failed 1987 SWIM plan, except that the Department of Agriculture is to play a much larger role in abating farm pollution. That department’s track record on pollution abatement is questionable at best; absent a true revolution in that department, the quality of water in the Lake will continue its downward slide. The following is a review of the pertinent sections of the Act.

The Lake Okeechobee Protection Plan Section Summary

In general, the Lake Okeechobee Protection Plan amends the 1987 Lake Okeechobee SWIM Act. The difference is that the SWIM Act called for reaching the necessary pollution reductions in five years. The Pruitt bill amends the existing law to require only a plan for achieving necessary pollution reductions, which plan must be formulated by January, 2004. However, no deadline is set for achieving the needed pollution reductions.

Section (3)(b) sets out the plans for the Lake Okeechobee Construction Project. The purpose of this project is to improve hydrology and water quality in the Lake and receiving waters downstream of the Lake through construction projects designed to obtain phosphorus load reductions in the Lake. This plan is to be implemented in two phases.

Phase One of the construction projects identifies a series of stormwater treatment areas (“STAs”) and wetland restorations aimed at reducing phosphorus loads “as soon as possible.” Priority basins are the Taylor Creek/Nubbin Slough basins and the lower Kissimmee River. Although total STAs and reservoirs in the range of 50,000 acres or more will be needed to clean the polluted water, the Pruitt bill calls for the construction of only 5,000 acres of STAs, and then only in the Taylor Creek/Nubbin Slough basins. Two wetland restoration projects on the critical projects list are required to be completed by the end of this year. Additional projects on the list are to be completed by January, 2003. In addition, a pilot project to remove phosphorus from tributaries will be designed by 2002. Experts in the area are skeptical about the project’s chances of success.

Phase II calls for more reservoirs and STAs designed to discharge at 40 parts per billion phosphorus. Although the plan is to be completed by January, 2004, no appropriation is included and no deadline is set for meeting this standard. However, the water management district is required to conduct an evaluation of its progress every 3 years thereafter.

Section (3)(b) deals with pollution reduction programs and transfers major elements of pollution abatement responsibility from the DEP to the Department of Agriculture. The Pruitt bill charges the latter agency with developing Best Management Practices (“BMPs”), defined in the bill as a balance between agricultural productivity and pollution abatement. This “balancing” process represents a substantial departure from existing water pollution law that simply forbids pollution that causes substantial environmental damage. This departure seems to be especially unusual given that the Lake is in danger of irreversible hypereutrophication. The Act also sets no deadline for when such BMPs must be in place; instead, the Department of Agriculture is charged only with initiating rulemaking by October, 2000, and even then is limited to priority basins. Although almost all of the Lake pollution is from agriculture, the Pruitt bill focuses substantial attention on non-agricultural sources. Indeed, funding priority is given to domestic wastewater systems.

The bill deals with sewage sludge now being disposed on farms in the Lake watershed under the guise of soil augmentation (“fertilizer”). In particular, the DEP beginning July, 2001, is to require persons disposing of sewage sludge to submit plans to the DEP to limit phosphorus loading. This provision adds nothing to existing regulatory programs because existing DEP rules require such plans, including plans specific to the Lake Okeechobee watershed that must be consistent with the Lake Okeechobee SWIM plan. On the other hand, the Pruitt bill directs the Department of Agriculture to adopt rules regulating application of animal manure. In addition, the program aims to cap phosphorus loading to that of existing land uses. Thus, the already wildly excessive phosphorus loading should not increase beyond its current level.

Section 3(d) more or less codifies the existing the research and water quality monitoring program under the current SWIM plan. The new program is supposed to develop water quality baselines, evaluate long-term ecological changes, measure phosphorus loads at all inflow structures into the Lake, and measure compliance with water quality standards. By July, 2003 this program is supposed to develop an accurate water quality model representing the phosphorus dynamics of the Lake, determine the relative contributions of phosphorus from all sources, and assess the impact of current water management practices. All sources are to be examined, including the upper Kissimmee chain of lakes and Lake Istokpoga.

The Pruitt bill also calls for examination of experimental nutrient removal schemes, such as fish, dredging of canals and/or the Lake bed, sediment traps, and bioenergy conversion technologies. An exotic species program is also included.

Section 4 of the new Lake Okeechobee SWIM Act deals with permitting structures that discharges into the Lake. Persons (primarily the District) operating structures that discharge into the Lake must have permit applications in by September, 2000. Five-year permits are in lieu of all other state permits and must show that they are abating their pollution to the maximum extent practicable. In addition the permits must reduce “overall” phosphorus input into the Lake. By January, 2004, the District is to submit a plan by which its structures will achieve TMDLs by January 2015.

Section 5 provides that Lake discharges through the St. Lucie River, the Caloosahatchee River, the Everglades National Park, or the Indian River estuary can not violate the water quality standards of the those water bodies or adversely affect the vegetation or wildlife. However, this restriction may be waived if the District declares an emergency and the DEP Secretary concurs. Given that the Lake is filled every year as if a drought is impending and that in most years emergency discharges are needed, the effect of this provision does not actually modify the status quo.

Another part of the Pruitt bill exempts farmers from environmental permitting for environmental restoration projects. The aim of this provision is to allow farmers who seek to restore wetlands to get a waiver letter from DEP.

The state TMDL implementation statute, section 403.067, is amended to eliminate the concept of assimilative capacity, which identifies the amount of pollutant that a water body can receive without being ecologically damaged. Substituted is language that states that a TMDL is the maximum amount of a pollutant that a water body can “receive.” This appears to license TMDLs that will allow greater pollution of water bodies. In addition, the TMDL implementation statute is amended to basins and categories of sources instead of individual pollution sources. With only a basin identified as the problem rather than an individual polluter, the DEP’s power to implement pollution reductions through TMDLs is sharply limited.

Finally, the District is directed to make less-than-fee purchases for the Kissimmee River headwaters restoration project and to pay the landowners on an different appraisal method that presumably pays them more money.

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