Part Two: The Agony of Florida, Its Rivers, Bays, Estuaries, And Politics ... by gimleteye

Read: "Part One: The Agony of Florida, Its Rivers, Bays, Estuaries, And Politics"

Big Sugar controls Florida except for the rain.

Managing government regulations and laws are routine costs of Big Sugar business. It takes big money to externalize the costs of pollution, say, or to increase costs to public health as a consequence of promoting added sugar in the American diet.

Alfie and Pepe Fanjul, Florida Crystals

Expensive as lobbying, lawyering and politicking may be, millions per year are only a fraction of the windfall derived from government subsidies and sugar price supports.

Floods or drought are other matters. Big Sugar can't plan for too much rain or too little, but in both cases, the effect of weather extremes is to make crop yields unpredictable. Reducing unpredictability to the maximum extent possible challenges every farmer. With so much money at stake, Big Sugar has perfected its tools.

That's why Big Sugar practices stage craft relentlessly. It has profit and motivation to keep its adversaries at bay; with strategies and tactics sharpened with focus groups and consultants. In the meantime, as a permanent matter, Big Sugar keeps a tight grip on the levers of water management infrastructure in South Florida; the most highly engineered and complex system in the world.

Big Sugar proxies at the state water management district governing board are now challenging a new law signed by Gov. Rick Scott on May 12, 2017. After the bill was introduced by Senate president Joe Negron, it was first opposed then supported by Big Sugar. There is only reason why Big Sugar would have permitted a law to be passed that it is now fighting. That’s what it planned to do from the first. It is another phase in the industry's permanent war against government regulation.

Why would Big Sugar fight an outcome it supported in the state legislature only a month ago?

The external husk of the law provides funding for a massive reservoir in the middle of the historic Everglades. Sugar successfully derailed a plan supported by environmentalists and scientists and countless citizens to buy 60,000 acres of additional sugar lands for the purpose of cleansing and treatment marshes. Instead, Big Sugar supported the construction -- with public dollars -- of a 12 foot deep reservoir, comprising nearly 26 square miles with walls over 30 feet high.

The kernals of the new law are what Big Sugar wanted. Here's is what Big Sugar got in exchange for supporting a deep reservoir its proxies at the water management district are now fighting: 1) real hard money, 2) a regulatory framework that continues to push environmental restoration so far into the future that most of the actors now on the stage will be gone by the time science concludes whether a billion dollars was well spent or wasted and 3) assurances that if the massive lake — costing at least $1 billion — is built but then fails its purposes, then the public will have to come back to Big Sugar without the most important leverage that government has in the execution of big infrastructure projects: eminent domain.

The new reservoir will be built atop a porous geology — lime rock — and on public lands that had already been designated for water treatment. Instead of a shallow marsh, Gov. Scott and the legislature approved a deep lake. The same depth as Lake Okeechobee, a breeding ground for toxic algae.

Whether or not a massive man-made lake is built, the innards of the new law confer massive benefits to Big Sugar. The fine points of the deal are liquid gold; in addition to prohibiting eminent domain, the law includes a requirement that any deal-making involving public lands farmed under lease by Big Sugar must done on the lessee's terms, and a novel way for Florida farmers to sell rain water to the public at the public’s expense.

That last bit is a huge, because a right of private ownership of rainfall never existed in Florida law. Now it does.

The backstory is deeply woven in the spirit of a rigged competition for Florida’s fresh water supply.

In South Florida in the winter of 2015/ 2016, rains began falling heavily. In dry season. Historic, biblical rainfall. Noah built his ark for such an event but not in a presidential election year. On the east coast of the Florida peninsula, the rainfall caused a powerful state legislator to face hard choices.

Joe Negron, a well-regarded attorney from Stuart and state senator, had advanced steadily to the top of the Florida GOP leadership. His route to the presidency of the senate in a massively important electoral state was vetted every step of the way. Negron was trusted to distribute major political campaign money through committees networked like sections of a spider’s web. Its individual strands connected through a small, elite group of directors, board members, and very wealthy funders. It is political money laundering, it is legal, and it is the American way thanks to the Citizens United decision by the US Supreme Court.

The state’s biggest campaign contributor is Big Sugar, a cartel with two primary actors: Florida Crystals, owned by Fanjul family, and US Sugar Corporation, controlled by the descendants of the Charles Stuart Mott fortune. These are billionaire competitors who even conservative critics, from the American Enterprise Institute to the Wall Street Journal editorial board, acknowledge as masters at rigging the political system to its own purposes.

For Senator Negron, under normal circumstances serving constituents in his district and Big Sugar would not be mutually exclusive. The rainfall in the winter of 2015/ 2016, with a presidential election on the horizon, was not a normal circumstance.

The flood stage in Lake Okeechobee, the diseased liquid heart of Florida, was approaching emergency level. Hurricane season — when copious rainfall is predicted to occur — was months from arriving. Something had to give. The “fix”: release massive amounts of highly polluted water from Lake Okeechobee to both Florida coasts; through the Caloosahatchee to the west and the St. Lucie to the east. As recently as 2013, these same coastal resources and communities had been nuked by polluted lake water; sending devastating algae blooms through treasured natural habitats but also right to the doorstep of Senator Negron’s constituents. Memories were raw, of fish kills and water too dangerous to touch.

In the winter of 2015/2016 civic protesters from primarily Republican districts in Florida threatened to scramble the  outcome of a presidential election

In late 2015 more than 200 Everglades scientists had signed a letter imploring Governor Rick Scott — a Big Sugar ally — to purchase at least 60,000 acres of Big Sugar lands for additional storage and treatment. Their plea was a significant reduction from what environmentalists had pleaded for a decade earlier; an increase of at least 100,000 acres. Big Sugar currently farms around 700,000 acres around the southern rim of Lake Okeechobee.

Senator Negron couldn’t ignore the logic for land purchase, although it ran counter-clockwise to the exquisitely calibrated time clock of Big Sugar.

In 2008, then Gov. Charlie Crist had negotiated an option to purchase more than 187,000 acres owned by US Sugar. Shrinking the cartel would expose new opportunities to reshuffle the political house of cards in Florida. That, in itself, was enough to send the co-cartel Fanjuls/ Florida Crystals into mad orbit.

Crist was punished by Big Sugar for his temerity negotiating the option to acquire U.S. Sugar. The Fanjuls heavily invested in his opponent, Marco Rubio. As a leader in the state legislature, Rubio had already proven his loyalty to Big Sugar. In the same election cycle, 2010, Gov. Rick Scott — a political neophyte was propelled to the governor’s mansion by his own fortune plus significant sugar money.

Fast forward to the winter of 2015/ 2016. In 2015 Roger Stone, Trump confidante, was on Big Sugar's payroll. He paid actors to counter-protest environmentalists and citizens at the water management district as the rains fell. Meanwhile, two Florida candidates for the GOP presidential nomination— Jeb Bush and Marco Rubio — gambled the Florida March primary would propel them to the GOP nomination. Both were favored sons of Big Sugar. And still the rains fell and primarily Republican districts began to join the greens.

A new grass-roots movement focused its ire on Big Sugar. Not environmental groups exclusively. Those opponents, Big Sugar had repeatedly pinned down. Groups like Bullsugar.org and Captains for Clean Water began organizing tens of thosuands of interested Floridians, finding their way around the mainstream press through social media. (At the time, I described the moment as “Florida’s Arab Spring”. I wasn’t far off, of the movement or of the backlash it triggered.)

Property owners and local businesses in Negron's district seethed with resentment. They understood the problem this way: their rights were being used as a sacrifice zone for Big Sugar. The poiednt is critical: Big Sugar has always known its unique vulnerability. Its small decision ranks, populated by very wealthy families, are no match for millions of Florida voters if they are awoken.

Senator Negron chose to calm his district. In early 2016 he pledged to dedicate his term as Senate president to legislation that would solve the pollution coursing lifeless, toxic sludge into his constitutents’ backyards.

Billions of gallons of polluted water per day coursed out of Lake Okeechobee into primarily Republican districts during the severe rainfall events of the 2015/2016 winter

Whether or not Negron knew the acquisition of 60,000 acres of land in sugar cane production was unachievable — a full year before his term as senate president was to begin — and notwithstanding Big Sugar's outrage and outer protestations, the rending of cloth and wringing of hands, a potentially explosive issue had been deflated by the incoming state senate president in a presidential election year. In a state that decided the presidency before.

This isn’t cynical politics. Heavy flooding laid bare inequities that don’t often rile voters. 29 electoral votes would be decided in November for Donald Trump. During the primary campaign he never answered a single question about Big Sugar or the Everglades or the devastated estuaries on both Florida coasts. (Rubio, on the other hand, called protecting the sugar subsidy in the Farm Bill a matter of “national security”, eliciting derisive howls from all quarters except one: his biggest campaign contributors, Big Sugar.)

In promising to address land acquisition in the March 2017 legislative session, Negron stripped the presidential campaign in Florida of a toxic mess.

In Miami, in Jan. 2016 protesters gathered outside a meeting of national non-profits to shame one of its participants: the Charles Stuart Mott Foundation that owns U.S. Sugar Corporation

Big Sugar, in the meantime, kicked into high gear its campaign to push responsibility for pollution onto any target that could fog a mirror. The industry pushed paid-for media, advertisements, local sugar advocates and recruiting indignant legislators and business leaders from North Florida to complain about the use of available funding for land acquisition. It attacked environmentalists. It attacked scientists. It attacked individuals. It recruited African Americans who would be harmed if their sugar jobs were sacrificed to the environment.

Their objections ranged from “the government already owns too much land” to “we want our region funded first.” (The land acquisition was to be funded through a mechanism put in the state consititution by voters through a popular referendum, generating 75% support in 2014, to use a portion of the documentary stamp tax generated through real estate transactions to fund environmentally sensitive lands.) Barbara Miedema, vice president of Sugar Cane Growers Cooperative of Florida, said in August 2016, "Taking another 60,000 acres of productive and sustainable farmland out of the EAA will without a doubt close down our sugar mill and put us out of business. Sen. Negron’s plan means losing a thousand or more jobs in the Glades communities, not to mention the impact to businesses in the community that provide services to us.”

The threat of economic hardship was only one salvo. Big Sugar applied pressure against Negron from every direction. Much of it was Kabuki — the theater of well-worn roles where everyone in the audience has seen the play and even memorized the actors’ lines.

Big Sugar knew that irrespective of the presidential outcome, the only legislation that would pass the state legislature and be signed into law would be legislation Big Sugar wanted. And it wanted a lot.

The public may have thought it was getting an additional 60,000 acres to store and treat dirty water so it didn’t have to be flushed onto their doorsteps. What they got was a bill of goods they already owned.

Pull the thread a little harder, and it takes readers back to the early 2000’s.

After decades of litigation by environmental plaintiffs and obstruction and resistance by Big Sugar, in 2000 Congress and the State of Florida signed an agreement (CERP, The Comprehensive Everglades Restoration Plan) incorporating the need for vast new, additional storage to cleanse and treat fresh water flowing from the north to the south. Storage capacity is also the bane of Florida’s rivers and estuaries since, if there is not enough storage during flooding, both the east and west coast riverways are used as emergency relief valves for highly toxic water from Lake Okeechobee. CERP never addressed the water storage problem. It proposed, instead, more than 300 aquifer storage and recovery wells to store excess rainfall in what the late John Marshall called “Vertical parking lots”. At the time, the one federal agency with expertise on the technology, the USGS, was not even called in to consult.

Deep wells were a technological “fix”, or work-around, to a political problem just like the 26 square mile deep reservoir is, today.

No sooner had CERP been signed by both the state and federal government as a consent agreement, the state of Florida — and then Gov. Jeb Bush — set out to make the new law fit Big Sugar’s needs. Bush and then House leader Marco Rubio engineered a weakening of the federal consent agreement through a new 2003 law. Their action triggered another Clean Water Act lawsuit by the Miccosukee Tribe of Indians and a small, grass roots environmental group founded by Marjory Stoneman Douglas, Friends of the Everglades. Eventually, after six years of litigation, the plaintiffs prevailed. Faced with a clear loss, Gov. Rick Scott declared victory. He committed to a new framework agreement to comply with the 10 parts per billion phosphorous standard and earlier litigaiton, committing the state to invest $890 million in Everglades-related water quality projects.

This year’s water legislation doesn’t authorize purchase of any new lands and certainly not the 60,000 acres of additional lands deemed by scientists to be the minimum necessary to treat and cleanse polluted water that otherwise dumps on the coasts.

The point about water storage is: a volume of water — any volume — can be stored at a shallow depth on X acres of land, or, a deeper depth at a fraction of X. Which provides a better outcome? In the case of Florida, the best solution is the one that nature provides: move a vast, thin layer of water across meadows filled with grasses that slowly strip and cleanse pollutants like fertilizers and nutrients and other man-made chemicals that would not otherwise occur in the environment. Stagnant water is at constant risk of toxic algae breakouts.

Toxic runoff from Big Sugar drainage canal in the Everglades Agricultural Area

"His original project carried a $2.4 billion price tag and would have required 60,000 acres of active farmland, but he agreed to a $1.5 billion compromise that forces the South Florida Water Management District — which had repeated many of the sugar industry's talking points in opposition to the measure — to shoulder the responsibility for making sure the project is completed.” Beyond that, there are a lot of “ifs, ifs and ifs”.

Negron navigated the final bill and its provisions with only minimal public comment and practically no ventilation by legislative committees. It wasn’t a sign of strength, so much as of weakness that legislators would do nothing to cross a powerful campaign force like Big Sugar.

The deep reservoir plan — the only solution Big Sugar would approve because of its objection to sell any more of its land to the state — contains a major risk: that it will become the same vast breeding pool for toxic algae as Lake Okeechobee, whose toxic waters it is meant to replace. The problem: it will take at least a decade to find out if the lake works. In a balance between certainty and risk according to the provisions of the new law, all the certainty falls to Big Sugar and all the risk, to the environment and taxpayers.

We know Big Sugar got what it wanted out of the Everglades Bill because the industry and its lobbyists went dark as soon as the bill emerged from committee in the Senate. When the bill hit the floor of the House, there was opportunity for mischief, but Big Sugar mouthpieces mostly went quiet. There was no House version of the Senate bill. No back-and-forth. The deal had been cut by Big Sugar. Environmentalists trusted not to spill wine on the tablecloth — the Everglades Foundation and Audubon of Florida — had been given a peek inside the tent.

Democrats in the state legislature were limp. In-roads by Big Sugar to the African American caucus ensured that there would be no unity of purpose around a stronger outcome.  The bill that finally emerged, SB 10, was written in secret with virtually no input by either the public or by the legislature.

Public testimony at a single meeting, the Senate Appropriations Committee hearing, was cut short after a few testified, but not before one pleader, a doctor from the Martin County Health System, noted that heart attacks in the community had skyrocketed after the polluted water fouled the St. Lucie River. He attributed it to the stress of people’s whose properties was being used as a septic system by Big Sugar. He only got three minutes.

Finally, it was Negron’s role to keep order in the legislature, making sure the bill passed without palpitations of the heart.

“This week, a $1.5 billion, 78-billion-gallon version of the plan finally passed through both houses of the Legislature last night in a move Everglades conservationists call historic. The nonprofit Everglades Trust called the deal "the most significant victory for Everglades restoration in more than two decades.” (State Finally Passes Everglades Restoration Reservoir Bill After 20 Years of Fighting Big Sugar UPDATED, Miami New Times, May 3, 2017)

Sierra Club assessed the bill as a “win”:

“Sierra Club supported the Everglades Reservoir bill, which the Governor signed this week. We backed the bill because, on balance, its passage benefited the Everglades and Florida's coastal waters.

“The law funding construction of a reservoir will help reduce Lake Okeechobee freshwater discharges that have been producing toxic algae in the St. Lucie and Caloosahatchee estuaries, as well as send clean freshwater south to replenish aquifers, the Everglades and Florida Bay. Restoring these freshwater flows to the south will also improve the resiliency of South Florida from sea level rise and saltwater intrusion.”

“… While the new law speeds up the process for storing water on public land south of the Lake, it failed to provide any of the 60,000 acres of additional sugar land requested in the original bill for water storage, treatment and conveyance. The law also prohibits the state from using the power of eminent domain to acquire sugar lands, an important tool sometimes necessary to protect the Everglades, prevent ecological collapse, and preserve the water supply for 6 million people. The law forces more water to be stacked up in a smaller footprint, driving up costs and limiting options. We also remain very concerned that the South Florida Water Management District plans to rely on Aquifer Storage and Recovery and Deep Injection Wells north of the Lake instead of buying more land and building adequate above ground storage, which would provide more ecological benefits in line with Everglades restoration goals. We are very pleased however that the law provides training programs and preference for Lakeside residents to secure jobs building the new reservoir. We hope that this is just the beginning of serious efforts to transition the Lakeside communities to a diversified, stronger economy that protects its vast natural resources and public health.”

Carl Hiaasen, in the Miami Herald, wrote, "Cautious praise for the compromise passage of Senate Bill 10 is deserved. Celebration would be foolish.”

During the legislative session, Big Sugar enlisted more than 100 lobbyists — a greater number that sitting state senators — to roam the hallways and bars.

During the 2015/2016 winter, the pollution flowing west through the Caloosahatchee River was as polluted and dangerous as the water to the east coast. 

A sweetener was added to obtain Big Sugar’s assent: permission to use public dollars to create water storage and treatment facilities on private lands.  There is still no clear explanation for why this legislation included private lands, water storage and public funding to engineer new ways to sell rainfall to the public. Not even environmental organizations can explain it, other than to agree: this state law points Florida in an entirely new direction: allowing Florida’s biggest private property owners to sell rainfall that falls on their lands, after treatment regimes that the public may have to fund, back to the public. But that’s not all.

A decade ago, Big Sugar supported the Florida branch of the Pacific Legal Foundation, a pro-property rights foundation, to lay the groundwork against eminent domain because the industry knows better than anyone in public or private life that there probably is no other way to fix the Everglades, after all the Rube Goldberg work-arounds have been tried and failed, than to return sugarcane fields to highly engineered wetlands recovery systems.

With a stroke of the pen, Gov. Scott delivered the ultimate prize to Big Sugar: a prohibition against eminent domain in the Everglades Agricultural Area while at the same time providing for the termination of the US Sugar option that would have placed 187,000 acres in public ownership.

One last part of the new law: an extraordinary provision that requires government to end leases on lands owned by the public under the following condition; to not only pay Big Sugar for both crops and waste product it has produced, but "to compensate (sic) for any documented, unamortized planting costs, and any unamortized capital costs associated with the lease and incurred before notice.” So in other words, the capital investments of a corporation are being attached to a lease — and if that lease on lands already owned by the public is broken, then taxpayers have to pay for the portion of machinery, plant and capital equipment that might have been used to farm on that land, once or twice a year.

Who is going to decide what is a fair allocation of capital costs on an individual lease? If there is no requirement for public disclosure, the question could be asked another way: what state employee would dare to bicker with Big Sugar over its profit?

Closing off eminent domain plus terminating the US Sugar option, plus mandating “willing” termination of existing leases by Big Sugar on public lands, adds up to a twelve foot deep reservoir costing a billion dollars that risks leaving Floridians, a decade ago, where they are today.

That's a different outcome than expressed by Senator Negron on the signing of the new law by Gov. Rick Scott on May 12, 2017:  “I look forward to the work ahead as we continue to work with Governor Scott and our federal partners to expedite the planning and construction of this critical project,” Negron said. “Together, we will end the plague of toxic blue-green algae that harms the health of our citizens and destroys our environment and our economy, once and for all.”

(Part Three, conclusion, tomorrow)