Thursday, January 16, 2014

On Everglades, what attorney Neal McAliley, former DOJ attorney who protected the Everglades, would not write in the Miami Herald: let's have the final Everglades battle in our lifetimes … by gimleteye

The Miami Herald OPED by Neal McAliley describes its writer as "… an attorney with the law firm White & Case in Miami, who has represented governmental and nongovernmental clients in environmental matters. He currently is chair of the South Florida National Parks Trust." Among Mr. McAliley's clients: the rock mining industry, one of the most secretive and wealthy industries in Florida, and an industry whose profit model is based on chewing up Everglades wetlands for cement, highway construction materials and other concrete products.

While at the US Department of Justice, Mr. McAliley defended federal agencies in involved in Everglades restoration and, in particular, the science behind the 10 parts per billion phosphorous standard that is the cornerstone of Everglades restoration goals. The science is iron-clad and immutable. Phosphorous is a byproduct of the growth of sugar cane in nearly 1 million acres of privileged, tax-payer subsidized sugar that benefits some of the wealthiest farmers in America, including the billionaire Fanjuls of Palm Beach and Miami.

The use by the sugar industry, dairy farms, and suburban areas of Lake Okeechobee as their cesspool has turned the source of South Florida's drinking water into a polluted disaster. In order to protect the subsidized industry south of the lake when it rains too much, the canal gates open and pour toxic sludge into the estuaries on both coasts, pitting billions of property values against the political stranglehold of Big Sugar and its billionaires.

Now Mr. McAliley has a solution: "rethink outdated restoration choices made 20 years ago". Those restoration choices, as Mr. McAliley knows, weren't pulled out of a hat except in one critical respect: the entire plan for Everglades restoration was a work-around of Big Sugar.

The solution is to take out of sugar production enough land in the right places to create vast cleansing marshes; requiring Big Sugar and not the taxpayer to clean up the disaster it has made of Florida's water supply. The solution is happening, piece-meal and with mind-numbing delay, as a result of federal lawsuits by environmentalists, but Big Sugar will not surrender a square foot of land to government agencies charged with restoring the Everglades without a costly fight at each and every point of contact. Big Sugar -- and the Fanjuls, in particular -- are not willing sellers of key pieces of land, measured in the tens of thousands of acres. Instead, they move with deliberate consistency in the opposite direction, plying local governments and state planners with an escalating list of urbanization projects. This is not about Everglades restoration. It is a war of attrition. Period.

In the intervening twenty years what has become perfectly clear is that Big Sugar will not give up its right to its last cent of profit, whether on its own land or land it leases at extraordinarily favorable rates from the state of Florida.

Since the science of Everglades restoration is immutable -- below 10 parts per billion phosphorous, the Everglades thrives and about 10 parts per billion it converts to a sterile landscape fit only for weeds -- the choice is to begin eminent domain proceedings against Big Sugar. That's not what Mr. McAliley writes, however.

20 years ago, environmentalists were so eager to make a deal with the Clinton administration, they accepted a fraudulent work-around: vertically stacking billions of gallons of water in deep wells -- more than 300 hundred of them at a projected cost of $3 billion -- instead of using surface land storage in sugar production for cleansing wetlands. It was pathetic, in retrospect. Hundreds of thousands of man hours were spent on a plan that neglected to obtain the stamp of approval from the single federal agency capable of science to that purpose: the USGS.

In his argument, Mr. McAliley writes, "It is time for a frank debate about whether it is more important to keep the last few ppb of phosphorus out of the Everglades, or whether to deliver more freshwater. The reality is that we cannot have it all when it comes to restoration, at least for the foreseeable future."

What Mr. McAliley's fails to explain to the Herald readers is that plaintiffs from the environmental side in two federal courts like Friends of the Everglades (that I represent as president of the board) have already agreed to enormous compromises by the US EPA and state of Florida, resulting in a measurement protocol that addresses ways to achieve 10 parts per billion.

Mr. McAliley's underlying worry is that the government agencies in charge, especially the water management district and US Army Corps of Engineers, will miss deadlines they recently agreed to in federal court, just as they have in the past.

If we are going to backtrack to those hard choices 20 years ago, we have to do what Mr. McAliley doesn't write. Begin the process of taking enough land to cleanse Big Sugar's pollution because there is no possible way that Big Sugar will negotiate in good faith. Decade by decade, Big Sugar has shown its skill, playing Florida politics like conductors of the orchestra.

Remember: this possibility -- of purchasing outright Big Sugar's lands -- was already attempted by then Governor Charlie Crist in the mid-2000's. The net result was the furious outburst by the Big Sugar billionaires who threw all their weight to now US Senator Marco Rubio, vilifying Crist. The lesson is that everything has been tried, that could be tried, except for one: eminent domain proceedings in federal court.

Let's have the final battle in our lifetimes.

His OpEd

Read it here:

Posted on Tue, Jan. 14, 2014
More freshwater should be top priority in Everglades restoration

There is a growing consensus that much of the Everglades is suffering irreversible damage from a lack of freshwater. While Everglades advocates seek approval of a new $1.7-billion restoration project, which will take decades to implement, the reality is that we could substantially increase freshwater flows now with existing facilities.

What it would require is for people to rethink outdated restoration choices made 20 years ago.

A healthy Everglades needs more freshwater, and needs that water to be cleaned of excessive phosphorus. Without enough freshwater, the upstream Everglades loses the characteristics of a river, and the downstream Everglades turns into mangrove forests. With too much phosphorus in the water, marsh areas exposed to the phosphorus can turn into a forest of cattails. Ideally, restoring the Everglades requires both more water and cleaner water.

It is hard to both increase freshwater deliveries and reduce phosphorus levels at the same time. To meet strict phosphorus standards, water managers divert water that otherwise could flow to the Everglades. This means that water managers have to choose which is more important: reducing phosphorus levels to the absolute minimum or increasing freshwater deliveries.
For decades, government policy has been to reduce phosphorus levels first, at the expense of delivering enough freshwater to the Everglades. That made sense 20 years ago, when average phosphorus levels entering the central Everglades were in the range of 180-205 parts per billion (ppb), far above the 13 ppb level for inflows that most scientists believe is fully protective of the Everglades aquatic ecosystem.

Moreover, most scientists agreed that phosphorus damage was essentially irreversible in the areas of the Everglades that received the high phosphorus water, but that the damage caused by low water levels could be quickly reversed once new water (with low phosphorus levels) is delivered.

Restoration officials need to rethink that choice today. Since the early 1990s, substantial progress has been made toward reducing phosphorus: Today, average phosphorus levels in water entering the central Everglades are 18 ppb, which means that water managers have achieved more than 90 percent of the cleanup target.

While phosphorus levels over the 13-ppb target can cause adverse effects, the harm is minor compared to when phosphorus levels were 10 times higher in the 1990s. Waiting for the final few percentage points of cleanup - which is projected to take another 15 years, at a cost of $900 million - is causing its own environmental harm.

In 2012, the National Academy of Sciences concluded that the Everglades faces irreversible damage if additional water is not sent soon. In October 2013, a study by the University of Miami showed that the reduction in freshwater flows, combined with sea level rise, is causing Everglades marshes to turn into mangrove forests at the southern end of the system. And this past year, billions of gallons of excess water from Lake Okeechobee were dumped into the Caloosahatchee and St. Lucie rivers, causing severe harm there.

All of this harm is happening, at least in part, because water managers cannot send additional freshwater to the Everglades. And the insistence on perfection with phosphorus levels stands in the way of implementation of important restoration projects, including the project to modify water deliveries to Everglades National Park.

No government agency has taken a clear-eyed look at this tradeoff in 20 years. When phosphorus levels were averaging 180-205 ppb, there was a broad scientific consensus that phosphorus reductions were the first priority. But since that time, government agencies have been locked into that choice, and have not re-examined the tradeoff, even as phosphorus levels have been dramatically reduced and scientific evidence mounts that the Everglades is dying of thirst.

It is time for a frank debate about whether it is more important to keep the last few ppb of phosphorus out of the Everglades, or whether to deliver more freshwater. The reality is that we cannot have it all when it comes to restoration, at least for the foreseeable future.

The good news is that we can actually increase freshwater deliveries with the water management system we already have, and building on the phosphorus cleanup that already has taken place. But restoration officials need to rethink their old assumptions.

Neal McAliley is an attorney with the law firm White & Case in Miami, who has represented governmental and nongovernmental clients in environmental matters. He currently is chair of the South Florida National Parks Trust.


Anonymous said...

Wile I must admit not to be well informed about the subject mater. I can not but notice the utter helpless as regards the general well being of the US population versus the corporation people.
And to ad insult to injury, this in a country that treats its political deviant country's with shock and awe to make them comply. What gives?

Anonymous said...

Let's go for it!

Anonymous said...

I wrote the Herald Op-Ed to re-start a public debate over whether we are making the right choices today in 2014 for Everglades restoration. By your response, it looks like I am succeeding. And I welcome your views, even when we disagree, because you are a smart person who cares about these issues. But there are a few things in your response with which I take issue.
First, I am disappointed that you started with an effort to "kill the messenger" instead of dealing with the message. Yes, I am a lawyer, and yes, I have represented a variety of clients over my career. That does not make my views theirs, or theirs mine. The Op-Ed contains my own opinions, period. And by the way, I have not switched positions on the adverse effect that phosphorus has on the Everglades: in fact, I repeated in my Op-Ed the fact that phosphorus above the effluent limit it harmful.
Second, on the merits, you are not addressing my basic point. There is a practical tradeoff between reducing phosphorus and increasing water deliveries to the Everglades. We already have achieved 90%+ of the phosphorus cleanup. Nobody is suggesting undoing all of the cleanup measures that are in place. The question is what choices do we make going forward: do we make elimination of the last few ppb of phosphorus the priority, or do we accept more water for the Everglades? If we choose to reduce phosphorus first, then we likely will have no additional flows into the Everglades until the 2020s. Does that really make sense? Don't attack the messenger for asking an important question.

Neal McAliley

Anonymous said...

Mr. McAliliey

Your points are taken, but the silkiness of that Op-ed was not lost on me. I imagine a very pricey PR firm glossed over your essay and its careful presentation. Ay?

Anonymous said...

I wrote the whole thing, no PR firms. I'm glad you like my writing style!

Anonymous said...

Hmmmm, yes there is a future for you with half-truths, spin and misrepresenting statements. Maybe you should change professions.

Anonymous said...

Without really having knowledge on the science, isn't it possible to start both solutions? Diverting more freshwater while we begin the eminent domain proceedings?
And for the non-science person here, is it easy to explain how is it that the addition of freshwater doesn't naturally reduce the phosphorus levels? How is that otherwise done? I would think dilution could help.