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Teleconference: Clean Water for Florida

Managing Attorney David Guest discusses how Earthjustice is protecting Florida's water and the national implications of that work.

Length: 53 min 25 sec
Recorded: March 28, 2013
[ Download MP3 ]

Throughout its history, Florida has been known for clear, sandy-bottomed rivers, streams, lakes, springs, bays and beaches—places of beauty and revitalization that draw visitors from around the globe. Today, Florida's waters are being poisoned by runoff from agricultural operations, fertilized landscapes, and septic systems.

Managing Attorney David Guest discusses Earthjustice's decades-long work to implement effective regulations to restore Florida's waterways and halt destructive practices and projects.

The conversation was held on March 28, 2013 and moderated by National Press Secretary Kari Birdseye.

The Everglades were drained and regarded as worthless swampland for years before Floridians began to grasp the damage done to the wilderness and water supply.  (DOS)

Kari Birdseye: Hello and thank you all for joining us today. I'm Kari Birdseye, National Press Secretary for Earthjustice, here to moderate today's discussion with Managing Attorney of Earthjustice's Florida Office, David Guest

Today, we will be discussing our strategies and casework addressing clean water for Florida. Florida's lifeblood is water, with its wetlands, high water table, extremely porous soil, and intricate ecosystem. Floridians are closely tied with their most precious element. Those wetlands, lakes, and rivers bring life to Florida's most important natural features: The Everglades, Lake Okeechobee, and the state's mangrove forests and beaches.

Earthjustice's Florida office was founded in 1990. A significant amount of the office casework revolves around fighting to protect the state's precious waterways, and while much of this water is on behalf on the citizens of Florida, the results can wield national implications for clean water regulations.

We're going to start things off today with an overview of our work in Florida and then dig a little deeper into some of the active cases. We'll then open up the lines to take your questions. When you are ready to ask a question, press 1 on your touch tone phone, and we'll get your question ready to go for David. So let's start things off with an overview. David, can you give us a snapshot of what the Florida office works on and why you select these issues?

Give us an overview of the Florida office.

David Guest: Yes. The Florida office was opened in 1990 because of pressing needs by the environmental community in Florida—local, statewide, and national organizations that needed representation in court. We had involvement in the big Everglades case from our Washington D.C. office, and it became evident by then, by 1990, that a regional office in this state was necessary. So that was founded in October 1990, and of course, we've been here staying very busy ever since.

The most pressing issues in Florida are all about water. The reason for that is that in its natural condition about two-thirds of the land area of Florida was submerged during the high water season. So the history of the state has been about manipulating water, channelizing things, waterways, to drain the Everglades. Of course, a big section of that was drained and turned into agriculture. So Florida's really about water supply underground, water supply on the surface, and water pollution. That's really what the story's about.

Boaters, anglers and swimmers heading to the spring-fed Santa Fe River near Gainesville, FL, encountered an outbreak of toxic green algae.  (John Moran)

Another big piece of the puzzle is protecting the waterways themselves. The navigable waterways, which probably most of them are, are probably seventy thousand miles, perhaps, of those throughout the state. There are fifteen hundred miles of coastal area—that is, shoreline—and maybe fifty or so estuaries, and hundreds and hundreds of lakes. So there's six hundred named lakes in Florida. They all need protection, not just from development themselves but to protect their public character as a way of preserving them for public use and a way of protecting them from destruction from pollution and excessive water withdrawals.

Water pollution has become a major issue in Florida. It's been developing over the years. Sewage, fertilizer from mostly cattle operations, and manure from cattle operations are really the biggest problems. There are great water resources in Florida. The Everglades is one that's well known. Lake Okeechobee is the second largest lake in the country in terms of surface area, and it is profoundly polluted by these things. So those are the three big reasons that we have to focus on the issues that we do—that everything is water; that it's being withdrawn, it's being drained; and then it's being contaminated by various different sources.

Kari: Does the work we do on water issues in the state of Florida matter outside of the state?

Describe the national impact of Earthjustice's work in Florida.

David: Some of it really does. A good illustration of that is that the pollutants from sewage, fertilizer and animal manure are a pestilence on the whole country. Large areas, for example Lake Skinner in California, Grand Lake in Colorado, Lake Eerie recently, many lakes in Texas just as examples, are all periodically covered with algae outbreaks, some of which are toxic green slime that covers the surface of the water and can even occupy the water column itself below that. They produce toxins sometimes that are dangerous to even come into human contact with.

A toxic algae outbreak, caused by inadequately treated sewage, manure and fertilizer, on Caloosahatchee River in 2011.  (Sanibel-Captiva Conservation Foundation)

What happened with these pollutants is that, in general, you set numeric limits on how much the pollutants can get into the waterways like, you know, one part per thousand or something like that, like a speed limit on a highway. These particular pollutants managed to get away and not have that number, not have a numeric limit set, for various political reasons in the 1970s and 80s. This litigation we have in Florida to set limits on those pollutants to protect waterways from the green toxic slime is something that has national implications, and the whole country is watching what happens here in Florida.

The other issues, of course, we deal with issues of national concern, those being the Everglades is one that everybody knows about. There are resources—that's the best example—in Florida that are national resources. The Everglades National Park are a [UNESCO] World Heritage Site. So some of the work we do really does have national implications.

Another illustration of that is, you know, we can be the leader on things. The first time in the history of the United States that a new coal-fired power plant was stopped through litigation was here in Florida. It set a standard for throughout the United States that coal plants can be stopped by litigation. The immediate response was that utility stocks, the afternoon that we won, plummeted throughout the United States, and now new coal plants are looked at something that's maybe, maybe not, and are targets for appropriate enforcement actions to protect public health and to reduce the threat of climate change.

Kari: What are you most actively working on now?

What are your current cases?

David: We are mostly working right now on the problems presented by water pollution throughout the state from the sewage, animal manure and fertilizer [runoff]. We're working on Everglades issues very intensively right now, and we're also working on protecting sovereignty lands—those are waterways that are navigable and therefore public—from predations, efforts to convert them into private property. Those are the three big issues that we work on, and they occupy a huge amount of our time.

David Guest and staff from the Florida regional office, which was founded in 1990.

The hallmark of conflict litigation is that you have activity of a federal lawsuit—usually they start with federal lawsuits—and you have federal rules that are adopted as a result of that. You have litigation over those rules. You have congressional action riders and efforts to try to thwart the progress that we're making. You have state rules, state legislation, and state litigation, and all of that is this big sort of cacophony of conflict, and the conflict litigation skill is to navigate through those things looking at everything at the same time. So it's almost like three-dimensional chess with all of that playing out, and that's the thing we focus on most right now.

Kari: Okay, callers. Get your questions ready. If you have a question, press 1 on your touch tone phone, and we'll get your question to David. We'll be taking those questions in just a couple minutes.

David, let's talk a little bit about the setback last week [on March 15, 2013] on the fight to regulate nutrient pollution. Can you tell us what happened there?

What is the latest on the fight to regulate nutrient pollution?

David: Yeah, what happened is that EPA caved to the political pressure from the Florida polluting industries and from the state of Florida. EPA is supposed to have, as its constituency, the advocates for clean water, and the proposals by the state were really just nothing more than what the polluting industries wanted.

The associations of polluting industries made specific proposals that are really efforts to evade the requirements of the Clean Water Act, and it was a true embarrassment that EPA simply folded to them. It was something that they never should have done, something that doesn't comply with the Clean Water Act, and what it does as a practical matter is it puts this controversy back where it began, back into federal court. That is always the place. Federal court is always the place where every single advance in protecting clean water, restoring waterways, has ever taken place in the history of the Clean Water Act. Every single thing was driven by lawsuits, and this was no different.

So when the EPA just snubs its nose at the Clean Water Act, we're going to be back in court. And we'll be back in court over this one and back soon.

Kari: I know you don't like the term "nutrient pollution." Can you explain what it is?

What is "nutrient pollution"?

David: Well, I don't like calling it nutrient pollution because what it is is sewage, animal manure and fertilizer. And how it works is pretty simple. All these things really function as fertilizers. When you put a fertilizer, sewage, or manure on your lawn, it makes it turn green. Well, when you put it in the water, it makes the water turn green too, for the very same reason. It fertilizes the water. And that's the reason—because it functions kind of as fertilizer—that it's referred to as nutrients, but nutrients invokes the idea of [the breakfast cereal] Special K or something like that that makes a water body healthy.

An algae outbreak at Caloosahatchee River in August of 2005. The algae can cause respiratory and other health problems.  (John Cassani / Lee County Hyacinth & Mosquito Control)

Well, it doesn't make it healthy. In fact, one of the things that we hear is, "Well, nutrients are essential, because without them fish would not be able to survive." Well, you know, that's true. It's true technically, but I guess I would make a metaphor about salt. We got to have some amount of salt to survive, but if you end up drinking seawater, you're going to get pretty sick, and you're probably going to die, and that's the same thing that's happening here. So we're struggling with reducing the inflow of these pollutants so that we can stop the green slime outbreaks.

Another aspect of that that you see apart from that is the Everglades as an excellent example. That's a system that doesn't really have fertilizer in it at all to speak of—essentially none—and it has an ecosystem that's entirely dependent on very, very, very clean water. When you fertilize it, the thing goes absolutely crazy. It grows in a monoculture, a thicket of weeds that are so thick that it strangles out all the natural life forms of the Everglades from the algae that float on the surface that are naturally the base of the food chain, up to the great flocks of birds that used to populate the Everglades.

The ecosystem of the Everglades, dependent on very clean water, is seriously threatened by nutrient pollution.  (USGS)

So nutrient pollution—that is, pollution by fertilizer in the end—is really a major, probably the biggest, problem in Florida, and it's the biggest problem in the tropics. Why it's so serious in Florida compared to other places is because it's a subtropical climate, so it's warmer, and of course when you warm things up things grow faster. It has a huge amount of sunlight because it's such a low latitude, and it's a very flat state.

When we look at San Francisco, for example, there is more slope, more relief, to one street in San Francisco than there is to the whole state. If you go, for example, from Miami up about one hundred miles or so, the elevation changes by a total of twenty feet. So, the first few steps of a hill in San Francisco is the same height change that you get in a hundred miles of Florida. The high point of Florida is, what is sort of jokingly, called the mountainous area. It's something like two hundred fifty feet or so. Because of that, the water flows very slowly. The lakes tend to just sit there in the sun and not flush through very quickly, and that makes them much more vulnerable to turning green when they get fertilized. So that's the character of Florida that makes these pollutants so much of a serious problem.

Kari: I imagine that Floridians don't want green slime. Do they support stricter regulations?

Does Florida's public support stricter regulations?

David: Absolutely, they do support them, and we have been faced with a very well-organized effort to persuade people throughout the state that clean water is a bad idea and it's unaffordable. You see things like YouTube videos being broadcasted around where some guy is standing in front of a sewage ditch and saying we want this water so clean that we could drink out of the sewage ditch, and why would your utility bill go up seven hundred dollars a year and make it so you were going to lose your house potentially just so you can have these sewage ditches turn clean enough to be drinking water.

Truth is an early fatality in these kind of disputes, but in the end, when you frame the issue as: Do you want green slime or do you want clean water? … There's no question: People want clean water.

Truth is an early fatality in these kind of disputes, but in the end, when you frame the issue as: Do you want green slime or do you want clean water? Do you want a healthy place for your kids to swim? Do you want to protect your dog, for example, from being killed from swimming in slime water? Do you want safe drinking water? When you ask people that question and frame it that way, the answer is a resounding yes. So they do want it, and people are willing to pay a reasonable amount for it too, if you're willing to tell them the truth.

One of the disadvantages we have is that there are so many deep-pocket industries that are focusing on misrepresenting how important clean water is and how really easy it is to get there. You know, it's a struggle of public perception, but people want it. There's no question: People want clean water.

Kari: Okay, to remind our callers, if you have a question press 1 on your touch tone phones, and we'll get your questions to David.

David, here's your first question, and it comes from Ken in New York: "I've heard about the developments of anaerobic digesters being implemented on farms as a way to deal with pollution. Would this be a good solution?"

Are anaerobic digesters a solution to managing pollution from CAFOs?

David: Absolutely, it would. Anaerobic digesters are used for concentrated animal feeding operations, which is sort of the legal characterization of factory farms. Factory farms in Florida are dairy farms. They can have as many as two thousand cattle or more under the roof of a barn where they walk around on stress mats to protect their feet. They're just right there together, and they just feed them and milk them about ten gallons a day, twice what a record would've been thirty or forty years ago. And each cow will produce over a hundred and twenty-five pounds of manure per day.

Florida has a large number of cattle farms. The large quantities of manure eventually enter into the groundwater and surface waters.  (iStockphoto)

Right now, that gets washed off with firehouses into what are euphemistically called "manure lagoons." It's not the lagoon that you take your wife to on your honeymoon. It's a lagoon full of manure, and it ends up flowing into the groundwater and into the surface waters. The anaerobic digesters gather that when you're together and they digest them so that the methane is captured from the reactions and it's reduced to a material that's small in quantity that can be used for fertilizer or can be landfilled or recycled in other ways.

It's a very forward-looking technology that really is the ultimate right answer, and it's just a matter of bringing the dairy farms into the modern era so they take responsibility to control the pollution they cause.

Kari: Okay, our next question is from James in Florida: "We have some strong environmental laws such as the Clean Air and Water Acts and the Endangered Species Act, but we don't have regulations that seem to protect ecosystems. So when a development happens, a species might not be endangered but an entire ecosystem is at threat. How do we get those protected?"

How can entire ecosystems be protected?

David: Well, that's a really tough nut to crack because what happens is in our system, rightfully, there's private property. People have a right to own property, and they should. So if you want to preserve an ecosystem on private property, you have to make some practical compromises. People have a right, for example, to cut all the trees unless, for example, there might be an endangered species in the tree, which sometimes happens. So the right answer is to reduce the impact outside of that development. When people build houses, as they have a right to do, they're naturally going to disturb them. And preserve the wild lands that are there. So that's what you have to do to protect the ecosystems. But you can't really protect an ecosystem if you're going to have a residential development where there's a house on every acre. That really just isn't possible, and the answer to that one is acquisition of ecosystems with land purchasing programs and by purchasing land so that you get a coherent ecosystems—corridors, for example, for species to move through. That's really the answer to that problem.

Kari: Our next question is from Katie from Massachusetts. She actually has two questions: "What's your opinion of the new EPA Director?" I assume she means Gina McCarthy [who has been nominated to replace current EPA Administrator Lisa P. Jackson]. And the second question is: "How would you propose dealing with the cattle industry if you could get a political agreement?"

What is your impression of the EPA Administrator nominee?

David: Well, first of all, it's a wait-and-see on the new EPA administrator, and she hasn't been confirmed yet, but I hope and expect that she will be. We'll just have to hope for the best. She has the right credentials.

I think the big issue is not going to be her leadership so much as it will be the leadership of the White House. That has been the pattern of the past four years where the White House has not been as brave as it could have been in facing down political opponents. That will be the test of the new EPA administrator is going to be dealing with those guys and fighting off the Congress and keeping the White House behind them fully supportive.

Is a political agreement possible with the cattle industry?

Now, turning to cattle, the cattlemen's associations are extraordinarily powerful politically, and they don't generally talk to us in terms of compromising on issues. They are a major source of pollution in the United States and in Florida, of course, particularly. Florida has a huge population of cattle. Most people don't realize this, but maybe ninety percent of the population, other than Orlando, lives within twenty miles of the coast, so the interior of the state farms are mostly cattle ranches. And the cattle ranches can and should adopt practices that reduce the amount of manure and fertilizer than run off of their farms. They save the farmer money in the end, and it's just a matter of bringing them forward.

We have some pretty bright people that are running the Department of Agriculture of Florida right now, and they understand the problem, and I hope that their leadership and the leadership of people like them will pull the industry into a more modern approach to farming. That's, I think, the process by which we will get some advancement.

Kari: Our next question is from Jim in Florida: "Can you address water withdrawal from aquifers, specifically regarding the Adena Springs proposed cattle operation in north central Florida?"

Please talk about water withdrawals and the Adena Springs project.

David: Yes, let me start by saying a few things for the folks that are listening. One is that Florida is on what's called a karst formation that is a live stone formation that was sticking out of the ocean millions of years ago. Water is slightly acidic, and what happened is it sort of corroded a whole sequence of sort of caves and tunnels throughout that limestone formation.

When the sea level rose back up, those things stopped being out in the ocean and sort of got covered up, so we have this network that looks a lot like Swiss cheese under the ground that makes the water much more able to move from one place to the other. That's referred to as conductive and transmissive.

We started this issue back in the early nineties in a case in Putnam County where we sued the water management district for excessive groundwater withdrawals like the ones that are at issue in Adena Springs. What was happening is that the fern growers were withdrawing so much water for frost protection of their ferns that the lakes would actually drop several feet during the night. People had waterfront property where their boat docks would be fifty or a hundred feet from the edge of the water and that has, of course, a catastrophic effect on the littoral ecosystem out there, which brought us into the case.

The most pressing issues in Florida are all about water. The history of the state has been about manipulating water, channelizing things, waterways, to drain the Everglades.

The outcome was an appeals court decision that set minimum levels for aquifers were required throughout the whole state, that resulted in legislation, that adopted a system where they are required everywhere in the state. The standard is whether additional water withdrawals would cause significant harm to water resources of the aquifer. This particular water, Adena Springs, has not been the subject of a minimum level, and what's happened here is you're going to have massive groundwater withdrawals. I think they're up to seven million gallons a day now, which is a huge amount.

And because of the karst formations, it really is unknown whether those groundwater withdrawals will reduce the level in spring. Groundwater withdrawals have already reduced the flow rate out of the springs by forty or fifty percent at least, and this is just one more insult that not only will have an adverse effect on the springs around there. It'll set a terrible precedent that it doesn't matter what you do in terms of protecting springs.

That is being actively litigated, and the folks that are doing it are doing a fine job. We are not in the case, but we know the folks who are doing. John Thomas [who is representing opponents of the Adena Springs Ranch project] is a fine lawyer. He's doing a good job of it.

Kari: So the sinkholes that we're reading about nationally, the sinkholes that are going on in Florida, are they related to groundwater withdrawal?

Are sinkholes related to water withdrawals?

David: Oh, absolutely they are, because you get this feedback effect—what happens is because climate change we're getting much more severe droughts than we've ever had before. Lakes are lower than they've ever been. Springs are flowing less than they ever have, and that means that agricultural operations end up irrigating more, so you end up with much more intense withdrawals of water than we've ever seen before.

Aerial photograph of a large sinkhole which formed in Winter Park, FL in 1981. Sinkholes are a direct result of intense groundwater withdrawals.  (USGS)

The clearest example of that is in the area southeast of Tampa. It took place last year [in 2012] where the strawberry growers were trying to get frost protection from an unusual frost, and they sucked so much water out of the aquifer so quickly that there were sinkholes appearing all over everywhere. There were something like forty-seven houses that were damaged. One of the lines on Interstate 4 was closed. There was at least one lane out on every federal highways within about fifty miles of there, and that is a direct result of groundwater withdrawals. It's a growing problem throughout the state.

The lake that I boat on, which is Lake Miccosukee, maybe ten or fifteen miles east of Tallahassee had a sinkhole that appeared for the first time a couple years ago, and it dropped the lake down probably two or three feet before it filled up with lees and slowed it down.

These things are happening everywhere. The aquifer is like a sponge. The substrate is like a sponge, and when you suck enough of it out, you have holes drop in it. And I think that's going to get worse as time passes.

Kari: Another issue that we've been reading about in the press is the high number of manatees dying this year. Why is this happening, and is Earthjustice doing anything about it?

Why have so many of Florida's manatees died this year?

David: Most absolutely. That is the centerpiece of our litigation work because what's happening is on the west coast the manatee mortalities are resulting from exposure from red tides, which is a form of toxic algae that is fueled by fertilizer in sewage. There, it's probably mostly sewage. The chemical signature, the isotopic signature of the nitrogen in the red tides that are killing the manatees is a signature that clearly indicates that it's coming from sewage and manure.

"What you're getting … is a huge loss, an unprecedented loss, of manatees, that is a direct result of pollution from sewage, fertilizer, and animal manure."  (iStockphoto)

There's no doubt that we are causing this. And there's no doubt that the right answer is to set limits on how much of that can get in the water to stop red tide from doing this. There is a fiction that has been advanced in the anti-clean water movement that red tide is natural and that there is no nexus between pollution and red tide. The fact is that red tide used to occur occasionally, probably as a result of untreated sewage. It first appeared in a really serious form when a lot of untreated sewage was getting into waterways. It slowed off and nearly stopped when the Clean Water Act required better sewage treatment, real sewage treatment, and then as the state has grown, the amount of sewage getting into water has taken off, and we're getting a huge number of long-lasting, very large red tide outbreaks. That's what killed the manatees on the west coast.

On the east coast, you're getting the same effect. Fertilizer and manure and sewage is fueling the growth of a macro-algae called red drift algae that can sometimes have toxic effects. What you're seeing on the eighty or so manatees that have died on the east coast in mostly Brevard County is their stomachs are full of red drift algae, and that appears to be what killed them. So what you're getting on both coasts is a huge loss, an unprecedented loss, of manatees, that is a direct result of pollution from sewage, fertilizer, and animal manure. That's the cost.

Kari: I'll remind callers that if you have a question for David, press one on your touch tone phone, and we'll get that question to him. David, this question comes from James in Florida: "Do individual citizens have legal standing to bring lawsuits against federal and state regulations the same way that Earthjustice does?"

Do individuals have legal standing to bring lawsuits against regulations?

David: Oh, absolutely. We are lawyers that represent people, and while typically we represent environmental organizations, the statutes say any person who is adversely affected can challenge the legality of an action by federal environmental agencies. Now, not all actions are challengeable, but the ones that you think of the most are.

For example, when EPA approves a completely ineffective pollution rule by the state of Florida, you can go to court and challenge that and say, "That does not comply with the Clean Water Act." When the EPA, for example, fails to establish standards, as they very commonly do, as required by the Congress and the Clean Water Act, you can enforce them. You can go to court and demand that they do it, and you can get a federal court order that requires them to do it, and you can maintain oversight to make sure they do it as required, and you can challenge it if they do it wrong afterwards. That is generally true of federal environmental agencies.

Kari: Great. Our next question is from Heidi in Florida: "What can we do as local citizens about Florida State buying lands back from the sugar plantations but continuing to lease the land for destructive practices?"

What about Florida leasing public lands for destructive practices?

David: Yes, well that's a great question. I think what that's about is probably sending letters to your legislator and talking to your local politicians. What's happened is there are maybe fifteen, sixteen thousand acres of state-owned property in what's called the Everglades Agricultural Area that's former Everglades that were drained south of Lake Okeechobee. And what happened there is that the state owns the property and has been leasing it to sugar plantations for decades, in fact several decades.

We recognized, after twenty years of fighting, that the sugar plantations are really contributing huge amounts of fertilizer that are causing these huge problems in the Everglades. They're really destroying the Everglades, and it seems completely inimical to the state's policy of protecting the Everglades to use its own land to lease to the sugar companies, and what's even worse than that is the state rules limit those leases to six years, and they have recently leased fourteen thousand of those acres to two major landowners for thirty years in an exchange of land that got them very, very little.

If the soup has too much salt in it, you don't add more.

The state can and should either say, "Absolutely not. We aren't going to contribute to the pollution problem." If the soup has too much salt in it, you don't add more. That's the rule. And what they can and should do is, instead of leasing that land, they should sell it to them in trade for other lands that can be used for restoration projects, and that's simply not what they're doing.

In the most recent one that we're actually litigating right now, what happened is that the state needed several thousand acres to control the pollution and runoff into the Loxahatchee National Wildlife Refuge. They ended up doing a no-bid thirty year lease and a trade where the sugar companies got two acres for every one acre that was obtained by the state. No other person, no reasonable person, would do that. You don't trade your land two for one. You don't give thirty year leases when the law says the limit is six, so what you could do is support us. We're suing them right now, and we hope that in the event that we'll get legal recourse and bring some sense to the process.

Kari: Given all of this work that you're doing, can you talk about the clean water needs of the rest of the nation, and what are the implications for cleaning up waterways nationally?

What is the state of clean water across the country?

David: Throughout the United States, there are serious water pollution problems. Remember you have to look at the history here. In 1972, when the Clean Water Act was passed, one of the triggering events was the Cuyahoga River fire in Cleveland where it was so contaminated that the river itself caught fire.

We've made a huge amount of progress since then. It is now illegal to have untreated sewage coming from a sewage treatment plant. In the old days, they used to just pour it directly into the river or into the estuary. We've made huge progress there.

But what has happened is things have changed. There's a much larger population, so treated sewage is a great idea, but now there's so much more of it that it causes huge problems. Sewage plants need to be modernized throughout the United States to deal with that. Agricultural practices have changed over the course of the years. It used to be that fertilizer was an expensive commodity that was used sparingly and only when necessary. The change has been, in the past twenty of thirty years, that fertilizer has just been absolutely ubiquitous. It's used absolutely everywhere, and the standards that's used by the USDA is the expectation that at least fifty percent of the fertilizer that's put down on farm fields will end up either in the groundwater or washing off into a river. So most problems are really the most pressing problems throughout the United States, and they have to be dealt with by a change of attitude in the government and a more modern attitude in the agricultural industry.

A farm in south Florida. Agri-business corporations use very intensive farming practices where large quantities of fertilizers run off the fields.  (USGS)

What's also happened that has created national water pollution problems is that farming used to be family farms, you know. Sixty years ago, most farms were family farms of a few hundred acres at most. Now probably ninety-five percent of farming takes place with vast agri-business corporations that own huge tracts of land. In Florida, there are agri-business corporations that own almost entire counties, and in Florida probably ten agricultural corporations own maybe a quarter of the state or something like that. It's just crazy, and that's true throughout the United States.

So those corporations use very intensive farming practices where they put huge amount of fertilizers on the fields, knowing that it's going to run off, but they have spectacularly high yields that result from that. An illustration of that that I see is, for example, in vegetable crops. It used to be if you had your own garden, you'd know how many tomatoes you'd get from planting a regular tomato plant. The new fertilizing and watering practices that are used in industrial vegetable farming produce twenty-five thousand pounds of tomatoes in a single acre in a single planting. That gives you an illustration of that. Another one is when you plant potatoes and you want them to be very crisp, you put a huge amount of phosphorous fertilizer on them, and that all runs off.

That's the biggest problem in pollution in the United States, and right now under the Clean Water Act, most of that stuff is completely exempt because of the power of industrial agriculture. That's, I think, the biggest problem, and that's the price we need to be looking at is bringing them into the modern world where they're responsible for their actions.

Kari: Thank you, David. Our next question is from Lois in Illinois. She's been reading a lot about the defects and harm caused by chemical runoff. She's worried that the runoff in the waterways is affecting wildlife. How dangerous are they and how widespread is the problem? I guess she wants to talk beyond manatees.

Is the runoff dangerous to wildlife?

David: Well, it is a serious problem around the United States. What you see is pesticides, herbicides, and insecticides that contain exotic organic chemicals that end up getting into the water and profoundly affecting wildlife. Alligators in some places, not just in Florida but elsewhere, for example, are hermaphroditic. They're not really males anymore. They have bizarre birth defects that you're seeing, and you see changes like that that are plainly resulting from the use of these exotic organic chemicals that are used to alter the natural ecosystem, and it is a national problem, and the real problem is that EPA should really be regulating these things.

You see changes that are plainly resulting from the use of these exotic organic chemicals that are used to alter the natural ecosystem.

The Department of Agriculture should be working with them, but they have so much effect on increasing production that they really face a juggernaut of political opposition in the Congress and elsewhere, and that's the struggle. It is a huge problem, and it's a worsening problem, and there just are not now the legal tools to deal with that.

Kari: Okay, I want to remind our listeners that we have a few more minutes for a couple more questions, so if you have a question for David, press one on your touch tone phone. David, this question comes from Joel in Florida, and it goes back to what we were talking about a little bit ago. The EPA seems to talk a good game about the Clean Water Act, but why did they cave and give it back to industry in Florida? Why would they knowingly delegate it to a group that they know would pollute?"

Why did the EPA cave on numeric nutrients?

David: Well, imputing motives to other people is the most dangerous of all things, and I have a great discomfort in imputing a motive to those people, but what I do know is the pressures that they were under and that they are under. One of them is that polluting industries have enormous political power, not just in Florida but in the federal system too. They have gotten most of the Florida congressional delegation fully and completely brainwashed into being convinced that control of these contaminants will bankrupt industry throughout the state, will bankrupt counties, will impose impossibly high costs on consumers, and will produce very low benefits. I think that's the pressure that EPA is feeling.

I think too that there's this rumbling about states' rights and federalism and that this is a response to that. The idea's that we can have clean water, we should, but that the Clean Water Act can and should be implemented by the state, and we should give them a broad degree of deference. I think that's how they would characterize their obligation and their role. I think that in the face of those pressures there is a natural impulse to be excessively optimistic about what the state's going to do and to give them the benefit of the doubt whenever that's possible.

[Water contamination] has an enormous adverse effect on the economy, and the state government and EPA just aren't accepting that—that clean water protects the economy.

I think a harder look at the situation would suggest that that is a really bad idea for the reason that Florida is run, legislatively and in the executive branch by the governor and the governor's agencies, by a whole cadre of people—Tea Party folks, Libertarian folks—for whom it is an article of faith that rules regulating the conduct of business and industry are themselves morally wrong. So when you have a group of people with that orientation that are fully supported by aggressive, well-funded, powerful industries, it just doesn't seem to me to make an awful lot of sense for EPA to be deferring to them. It's just not what they're for.

The reason that we have the federal government playing the role it does in the Clean Water Act is best illustrated by the Cuyahoga River fire. There the state's head insisted that these are local problems that can be handled locally. The finding by the Congress, that was right, in 1972 is that it is the character of state politics that powerful industries can control the decisions that are made there and that the outcome is going to be that waterways end up being profoundly contaminated. It seems to me that EPA has lost sight of that basic premise that underlies the Clean Water Act.

Kari: We've heard a lot about how the recession has impacted the housing market in Florida, but how do these water issues impact the economy in Florida?

How do water issues impact Florida's economy?

David: They have very grave impacts because Florida is, to a large part, driven by the tourist industry, and when folks come down here and they see the red tide, everybody knows that the red tide is cause by water pollution, water contamination, and people from around the country, and indeed from around the world, come to Florida, and when they see the red tide, they go home or they go somewhere else.

A Red Tide Warning at a Volusia County beach keeps visitors out of the waters during a red tide event in October of 2007.  (Daytona Beach News Journal)

And they don't just do that. They tell all the neighbors and everybody that they know that they went to Florida and the whole place was this disgusting mess. This is having a really bad effect on the economy right now. You can't go fishing anymore in some places because the red tide outbreaks are getting bigger and worse. You go to a place where there's dead manatees is the big story in the news. Of course people don't come back, and they don't want to come back.

It has an enormous adverse effect on the economy, and the state government and EPA just aren't accepting that—that clean water protects the economy—and it's a really huge drag when you don't have clean water.

Kari: As many of our listeners know, when Earthjustice goes to court, we never go to court in our own name but represent clients and groups. Who are our partners on these issues?

Who are Earthjustice's partners and clients?

David: Well, we represent coalitions, typically of national, state, and regional groups. We represent, of course, Florida Wildlife Federation, which is the most powerful and sophisticated statewide environmental organization in Florida. We represent the Sierra Club, which is the premier national environmental organization. We represent the Riverkeepers. St. John's Riverkeeper is one of the most sophisticated and effective Riverkeepers around. Apalachicola Riverkeepers are there too. We represent the national groups like Defenders of Wildlife, National Parks Conservation Association, and regional groups like the Environmental Confederation of SouthWest Florida, and even small groups called Save Our Creeks.

Over the course of my time here, which is approaching twenty-three years, we have represented something like maybe one hundred and twenty different environmental organizations.

Kari: David, Drew from Florida wants to know: "How would Everglades restoration improve water quality in Florida?"

Would restoring the Everglades improve Florida's water quality?

David: Well, the Everglades restoration problem is two parts. One is the fertilizer pollution that produces these wild growths of weeds that crowd out everything and destroy the ecosystem. That by itself is a huge benefit, but it's a benefit for the Everglades.

Another piece of it is that the Everglades needs is additional water timed at the right time. That's a much harder nut to crack. What does Everglades protection do for the rest of Florida? Well obviously, it doesn't do anything north of the Everglades, which is roughly in the southern quarter or third of the state. To some extent, it will provide cleaner water for the well fields from which the southeast Florida cities draw their water but not to a huge extent.

The protection of water in the Everglades is really protecting the Everglades itself, and that's no small thing.

The protection of water in the Everglades is really protecting the Everglades itself, and that's no small thing. It's a natural heritage site. It's a unique ecosystem in the whole world, and we can and we should restore it.

Kari: Okay, let's end things on a positive note here. Are there areas of our casework where we're seeing progress in Florida, given the political climate of the day there?

Currently, in which of our cases are we seeing progress?

David: Absolutely, there's no doubt about that. Federal court is always open to us. It's open to all citizens, and that is a place where you have an even playing field, so in cases when you're up against huge industries, like we had some recently, there will be sixty lawyers filling the courtroom, and we'll be by ourselves or with one government lawyer at the other side, and they get two hours and we get two hours. We consistently do well in that forum.

We're continuing to litigate, for example, in the numeric nutrients case. Over the course of the years, we've had huge impacts, and I hope those continue. When I talked about the minimum flows and levels, we have probably protected, I think at last count, 273 water bodies from excessive groundwater contamination. We effectively got the issue about too much water withdrawals in the area south of Tampa on the scoreboard to the minimum levels. So there are huge victories there.

There's no reason to be pessimistic, but the fight never ends. We have to stay in the fight, and we have to expect to win.

There are other places where there was an effort by a well-funded coalition of giant landowners mining and timber companies to convert the waterways of the state from public to private property by a sequence of legal definition changes, and we fought those off over the course of two decades. We're still fighting on some level, but we have protected those for future generations.

So yes, there's no reason to be pessimistic, but the fight never ends. We have to stay in the fight, and we have to expect to win, and we've got a pretty good average.

Kari: Well thank you so much, David Guest. We have come to the end of our hour today, and we thank all of our callers and listeners for joining us and for all the great questions.

Earthjustice remains committed to protecting citizens' right to enforce environmental laws through the court. Every person on Earth deserves access to clean water. That's the right the Clean Water Act declared forty years ago. Earthjustice will keep on fighting until it's fulfilled. With you by our side, we will succeed. Thanks everybody for joining us and goodbye.

David Guest is the managing attorney of Earthjustice's Florida regional office.
This phone teleconference was held on March 28, 2013.


Video Feature
Into the Swamp

Alligators and polluters are all in a life's work for legendary Earthjustice attorney David Guest. Earthjustice's legal team in Florida has stopped a giant coal plant near the Everglades, battled overfishing in the Gulf of Mexico, prevented big landowners from blocking the public's right to traverse rivers, and more.

Images of Toxic Algae Outbreaks in Florida

The pollution that triggers algae outbreaks is preventable. Now that we know how the nitrogen and phosphorus in sewage, manure and fertilizer tip Florida's delicate ecological balance, we have a responsibility to do something about it.

The Everglades: A National Gem Worth Protecting

The Everglades were drained and regarded as worthless swampland for many years before Floridians began to grasp the damage done to South Florida's wilderness and water supply.

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