Fishable Waters

Sewage from the City of Winter Garden and waste from citrus processors added to the nutrient loading. Algae and alien water hyacinths cut off sunlight, killing submerged vegetation. When the water hyacinths were killed by herbicides sprayed at the insistence of the fishing camp operators, they coated the bottom with their decayed tissue. Bass all but disappeared, and in their place came a plague of algae-eating gizzard shad, which the state also attempted to control with poison. But instead of removing the dead fish, it left 30 million pounds of them to fester in the lake, further speeding nutrient recycling. In the 1970s the Clean Water Act shut down the point sources of sewage and orange pulp, but agriculture, designated a non-point source, was exempt. Muck-farm waste increased until, by the late 1980s, five million gallons of effluent a day was being pumped into what had become Florida’s dirtiest lake.

Lake Apopka hadn’t healed much by the time I saw it in March 1999. The methane was so bad that when you stirred up the bottom silt with an outboard motor you had to wear a surgical mask. During the previous winter, fish-eating birds had been dying by the thousands, particularly white pelicans and great blue herons but also great egrets, ring-billed gulls and wood storks. Apparently, they’d been poisoned by old pesticides leaching out of the soil now that fallow fields were being flooded as part of a lake restoration effort by the St. Johns River Water Management District. I found carcasses, and dying birds that could barely walk.

Making the loss of Apopka’s fishery all the more heartbreaking was the richness and beauty of the ecosystem Thomas and I encountered along the lake’s north shore. Ospreys, some clutching gizzard shad, sliced across the azure sky. Curled like truck tires, alligators sunned themselves along the big, water-collecting canals, and Florida red-bellied turtles floated between water hyacinths, surveying us with banker’s eyes. Yellow-rumped and palm warblers blew out of thick willows; coots and moorhens stalked across dollar weed; and northbound tree swallows swirled like coal smoke over the muck farms that had just been purchased and shut down by the St. Johns water district with help from the US Dept. of Agriculture’s Wetlands Reserve Program.

The Friends of Lake Apopka are pushing hard for full restoration of the lake and its poisoned wetlands. Thanks largely to their public education efforts and intense lobbying, the muck farms were purchased from farmers at fair-market value. A large element of the environmental community had loathed that idea. Why should the people who caused the problem in the first place be rewarded, it demanded? But Thomas and his group weren’t interested in what seemed fair or unfair—only what would restore their lake. They understood the political reality that if the agricultural community wasn’t on board, the lake was going to stay dead. So they formed an alliance with the farmers—just the sort of alliance built by the Fishable Waters Act. Five years from now the St. Johns water district will complete a 3,500-acre “marsh flow-way”—an artificial kidney of cattails and other wetland plants to replace the natural one destroyed by the muck farms. When the whole project comes on line, all the water in the lake will be pumped through the flow-way twice a year.

Meanwhile, Friends is helping the St. Johns water district with littoral zone plantings of such native vegetation as pickerelweed, bullrushes, water lilies, spatterdock and sagittaria. It is building a lake-restoration education center on 100 acres it purchased beside the West Orange Trail, which runs along the lake and is used by about 60,000 people per month. With the aid of a professional planner it has put together development guidelines for the Apopka basin, including a proposal for no new lakefront lots. (At least one developer loves the idea, acknowledging that a greenbelt along the shoreline would make his back lots more attractive.) Finally, Friends has procured funding for storm-water treatment on two tributaries. Such projects—on a far larger scale—are precisely what the Fishable Waters Act would encourage and underwrite. All across the country there are thousands of groups like Friends of Lake Apopka, most as rich in energy as they are bereft of resources.

The Clean Water Act has a provision whereby the states, with EPA approval, can set a “total maximum daily load” (TMDL) for a water body and, if it’s exceeded, move unilaterally to control non-point pollution. But the provision remains essentially unimplemented. Last year—when EPA responded to a broadside of environmentalist lawsuits by proposing to have the states enforce TMDLs—there was enormous backlash from non-point polluters. Although EPA finalized the TMDL regs, polluters and their allies pushed through a rider that blocks implementation for a year and a half, after which period anything could happen, including continued non-enforcement through state torpor or Congressional intervention.

The battle over TMDLs spooked an element of the environmental community—mainly the Natural Resources Defense Council (NRDC) and, to a lesser extent, the Sierra Club. As a result, there has been no support for the Fishable Waters Act from the Clean Water Network, an organization that purports to be “an alliance of more than 1,000 organizations that endorse . . . strong clean water safeguards to protect human health and the environment” but which is based at NRDC’s Washington, DC headquarters. Basically the reasoning was this: Although the Fishable Waters Act would in no way prevent strict regulations for non-point pollution in the next reauthorization of the Clean Water Act (if and when it happens), Congress might flaunt the voluntary, incentive-based provisions as an alternative to command and control. In other words, polluter-friendly politicians might say, “See, see. We’ve already addressed non-point pollution.”

Jessica Landman—who last year ran NRDC’s clean water project and co-chaired the Clean Water Network—had this to say when I interviewed her in November: “Since the councils are voluntary it would be in the interests of a polluter to stack the membership with its own partisans and get weakening provisions adopted.” But the bill stipulates that each council be “fairly balanced in terms of the points of view represented.” “Under the current Clean Water Act,” continued Landman, “there is plenty of authority right now to achieve these [Fishable Waters Act] goals. The problem is really implementation and enforcement.” Exactly. TMDLs have never been implemented or enforced, and there’s no indication that they ever will be. Landman and her colleagues strongly objected to the USDA being the lead funding agency. But, politically, there wasn’t a choice. Congress won’t tolerate another EPA program or even another Fish and Wildlife Service program. Besides USDA, through its Natural Resources Conservation Service, is already out there on the ground working with watershed councils and managing Farm Bill programs on which the act heavily depends.

The Fishable Waters Coalition worked hard to fix aspects of the bill that NRDC, et al found offensive. The original draft had an excellent provision called “innovative solutions,” which allowed a point polluter who, for example, had cleaned up 95 percent of his phosphorus to take, say, the $1 million it would have cost him to remove the last five percent and give it to the watershed council, which would then spend it on projects that would remove many times that amount of phosphorus by creating, say, wetlands to catch and treat runoff from watershed farms. NRDC, et al didn’t like “innovative solutions,” so the coalition took it out of the bill. NRDC, et al fretted that someone might use the Fishable Waters Act to build a dam, so the coalition wrote a provision specifically forbidding dams. They fretted that someone might use the act to put in a fishermen’s access road through a roadless area, so the coalition wrote a provision specifically forbidding access roads through roadless areas.

NRDC does lots of terrific stuff. But like so many environmental groups it needs to get out into the real world and find out what flies in Washington, DC and what works on the ground for fish and wildlife. If it can force command and control down the throat of Congress, the conservation groups in the Fishable Waters Coalition would be delighted. But they’re not taking any bets and they’re not about to sit around and see what happens. Jim Banks, the Washington, DC attorney who drafted the language of the Fishable Waters Act, used to work for NRDC. “I know how they think, and I understand how they can be concerned about something like this,” he told me. “But the day is coming when the arsenal of things one can do about clean water and habitat has to be broadened, and they have to accept that and embrace it.”