On February 1, 2022, environmentalist Maggy Hurchalla gave a presentation at The Edward and Bonnie Foreman Environmental Diversity Lecture Series at Stetson University College of Law in Gulfport, FL. The presentation, outlined in full below, discusses the frightening impacts of cyanobacteria as a world-wide problem and the challenges faced by the state and the U.S. Army Corps of Engineers as they work to implement the Comprehensive Everglades Restoration Plan amid this new public health threat.
Old Laws and New Health Threats
By Maggy Hurchalla
I’m going to talk to you today about water law and water reality in a warming world and the real or imaginary conflicts that now exist.
We didn’t have any water law in Florida until 1973. The general consensus was we had too damn much of the stuff and our challenge was to get rid of it.
In 1945 drought, it rained only 35 inches and Miami well fields turned salty.
In the rest of the 1940s it couldn’t seem to stop raining. In 1947 we had a slew of wet hurricanes and it rained 100 inches over South Florida.
As usual we responded to the floods rather than the drought.
Florida demanded and Congress approved the Central and South Florida Flood Control system.
It was still all about getting rid of water.
Then in the 1960s it was dry again, and the smoke from Everglades fires was choking Miami whenever the wind came out of the west.
We raised the dike to store more water in Lake Okeechobee.
We were beginning to understand that “too much water” was not our only problem. Florida doesn’t do average rainfall. It does unpredictable extremes. That’s hard to manage.
We were lucky enough to get a knight in shining armor back then.
In 1970 Reubin Askew was elected the 37th governor of Florida.
He had been part of a new wave in Florida politics when the Supreme Court ruled that legislative districts should be based on one man one vote instead of one cow one vote.
Reubin was a shy and earnest lawyer from Pensacola. To the horror of legislators and lobbyists he served only orange juice at events in the Governor’s mansion.
Askew and his new, younger, more liberal legislature passed a corporate income tax, the government in the sunshine law, financial disclosure, the state’s first environmental land acquisition program,
And, the Florida Water Resources Act of 1973.
The Eastern states had water law. If your property abutted the stream, you had water rights.
The Western states had water law. Water rights depended on who came first.
In either case it didn’t matter what you used it for. You owned it.
The Florida law – based on a national model code – established that all water in Florida, on the surface or in the ground, is a public resource. We own it.
While South Florida Water Management District had existed since 1949 to manage the Central & South Florida project, the legislature had to create 4 new water management districts to deal with allocating water in the rest of the state. The 5 Districts – under the supervision of Florida Department of Environmental Protection, would now decide who could use our water and how much they could use.
But it was OUR water. The agencies couldn’t give it away and they couldn’t sell it. They could issue water use permits for 20 years, but the water was on loan from the public for a specific purpose in a specific place. Permit holders didn’t own it and they couldn’t sell it.
The Statute set up a 3-pronged test for giving out 20-year consumptive use permits that “loan” the public’s water to specific users:
— Is it a reasonable beneficial use?
— Does it interfere with existing users?
— Is it consistent with the public interest?
The statute also provided for setting minimum flows and levels to make sure the agencies did not allocate water that was needed by the environment.
If we only knew what those terms meant we might be home free.
“Public interest” does not appear to be clearly defined by statute or regulations.
The Southwest Florida Water Management District’s Handbook says:
“In determining the public interest in consumptive use permitting proceedings, the Board will consider whether an existing or proposed use is beneficial or detrimental to the overall collective well-being of the people or to the water resources.”
That sounds encouraging so — WHAT WENT WRONG?
For over 40 years legislators and lobbyists have been trying to undo the accomplishments of the Askew years. They have tried to privatize water, but the model Florida water law is still on the books.
In spite of protections in the law, our environment is suffering from the way we have used and interpreted the statute and the rules that implement it. Our natural systems are hurting – from Lake Okeechobee, to the coastal estuaries, and down through the Everglades to Florida Bay and reefs in the Florida Keys.
Those systems are suffering from over allocation of our water.
In the Lake Okeechobee Service Area, through consumptive use permits, we’ve loaned out more water than we can dependably provide without hurting the water resources that provide that water.
Lake Okeechobee is the heart of South Florida’s water system. Before it got diked, water levels were actually higher than they are now, but because flood waters could go south and could spread out over vast undeveloped flat lands around the lake, the differential between flood levels and drought levels was much less.
In the diked and managed lake, the water had nowhere to go but up and down. The differential in lake levels is many times larger now.
In 2001 the lake dropped to 8.97 feet.
After hurricanes in 2004 the lake surged over 18 feet.
Natural aquatic vegetation, whether it is submerged aquatics or shallow marshes, cannot survive those differences in water level. Submerged aquatics die from lack of sunlight when lake levels get over 16ft. Their roots die and the soil turns into flocculent ooze.
The emergent shallow marshes die from lack of water during low lake levels. Their roots die and organic soils oxidize. Either way, released those nutrients were added to the nutrient load coming into the lake from offsite and there is less natural vegetation to absorb those nutrients.
WHY DID WE LET THAT HAPPEN?
Why have we kept lake water so high and let it get so low?
Because we overallocated water use permits.
We keep the lake as high as we can without risking dike failure, because we have issued permits for a huge amount of water to the EAA – the Everglades Agricultural Area just below the lake. To meet those demands, we need to hold more water.
We let levels get down to 9ft because, the agencies believe they have a legal commitment to meet permit demands.
Even in drought times when the water shortage level is reached for the lake, agricultural permit holders in the EAA get MORE water not less. Their permits are based on “demand not met” – less rain means they need more water. When water in the lake gets too low to travel south by gravity, we install special pumps at taxpayers’ expense to send irrigation water to the EAA.
Saving as much water as possible in the lake to meet irrigation needs that might occur at the end of the dry season makes it impossible to send more water south to the Everglades and Florida Bay in the beginning of the dry season.
When we hold as much as we can in the lake and it isn’t needed, it gets dumped east and west on the coastal estuaries to make sure the dike doesn’t break.
By its very size and dry season water demands, the EAA is the elephant in the room in South Florida water management.
That’s how making permit holders the top priority in water management has increased environmental damage throughout South Florida and added to a nutrient soup in Lake Okeechobee, leading to:
— High nutrient loads in lake sediments
— Higher nutrient loads in lake inflows from more intense agriculture
— Higher temperatures
— The death of native aquatic plants.
Having thrown a monkey wrench into a machine that was already sputtering, meet cyanobacteria.
Cyanobacteria used to be something that esoteric scientists loved and no one else had ever heard of.
We call it blue green algae, but it is not algae.
They are true bacteria that acquired chlorophyll. They are one of the oldest lifeforms on earth. They have been around for approximately 3.5 billion years.
Without them, we wouldn’t exist because 2.5 billion years ago this little bit of microscopic life created enough oxygen on the planet to allow the start of the animal kingdom. Their single mutation made possible the chlorophyll that defines the plant kingdom.
There are 1000s species of cyanobacteria with unpronounceable names like s Cylindrospermopsis.
They are a treasure trove of unique natural chemical structures that are being investigated for pharmaceutical purposes.
For a critter that is measured in microns, their repertoire of useful tricks is awesome. They split water to make oxygen. Some of them can fix nitrogen from the air and most can store excess phosphorous when it is available in the water. They have a microscopic buoyancy compensator with a biological
GPS that allows them to sink to the bottom for nutrients and rise to the surface for sunshine.
In their normal niche they are beautiful and beneficial. They produce oxygen where there is none. They feed larval snook in mangrove swamps. They hold down the desert sands with a fine crust. They partner with fungi in edible lichens. They give us the beautiful colors in the geysers in Yellowstone and the Andros salt pans in the Bahamas. Spirulina, a cyanobacteria, is sold as a health food supplement with documented benefits.
Cyanobacteria are found in fresh and saltwater, and soils throughout the world.
When the Health Dept. tells you cyanobacteria are naturally occurring and are found everywhere, they are right.
If that’s all they tell you, they are guilty of criminal negligence.
Massive cyanobacteria blooms are not naturally occurring – or they didn’t used to be, until we added excess nutrients from industrial agriculture, global warming, and reservoirs without natural marsh vegetation that can compete for the nutrients.
When the blooms of toxic “algae” covered 90% of the Lake Okeechobee’s open water in recent years, there were no cyanobacteria or cyanotoxins in the remaining lake marshes.
Under the right conditions – which now seem to be happening every year – accumulated phosphorous on the bottom of the lake, heavy rains that bring extra runoff and stir the lake up, dead marshes from high and low lake levels, and warmer weather have created a monster.
The shy and helpful critter that stayed in its niche is now erupting in toxic blooms all over the world.
They are found in reservoirs across Saudi Arabia, in the reservoir that supplies water to Kansas City, in lakes across Wisconsin’s dairy lands, in the Mullica River in New Jersey, the Murray River in Australia, and in water utility intake pipes in Canada.
Killing cyanobacteria is easy, but it usually kills all living things in the immediate area. Killing blooms over large areas is prohibitively expensive. In just one marina on Lake Okeechobee it worked, but it cost a million dollars and the algae came back.
Cyanobacteria produce some of the world’s most powerful toxins. They don’t all produce them. They don’t produce them all the time, but they can switch them on or off in an hour and most of them can produce more than one toxin.
Killing the cyanobacteria DOES NOT destroy the toxin which settles to the bottom and becomes part of the food chain. Toxins can persist for 6 months or more. They survive longer in areas where herbicides have sterilized bottom sediments of natural bacteria that break down the toxin.
Microcystin killed 21 sea otters in Monterey Bay when the toxins from agricultural runoff survived in Bay sediments and became part of the food chain. They kill cows in Wisconsin. They killed a 90-pound dog that was exposed near the St. Lucie Inlet and put 5 other dogs in the vet hospital with liver failure.
Human exposure can and does cause rashes, nausea, and respiratory problems that can send people to the emergency room. Except for the 52 dialysis patients in Brazil who died because of undetected microcystin in the Municiple water supply, most cyanotoxins do not cause immediate acute illness in humans.
But the toxins do accumulate and the long-term effects in humans are documented and terrifying.
Food chain exposure has been shown to cause neurodegenerative disease in Guam. Evidence suggests that exposure can cause ALS and Alzheimer’s and the cause and effect has been demonstrated in monkeys. Chinese studies show that subsistence fishermen on polluted lakes get liver cancer and their children have a high rate of diabetes. The rate of non-alcoholic fatty liver disease near Lake Erie blooms and around Lake Okeechobee is significantly higher than normal.
I could go on and on, but I want to stop here before I sound too much like Chicken Little.
Don’t panic. Even if you water ski through the stuff, you are probably not going to die unless you are a dog.
Do worry. It is the long-term effects that we need to worry about. We have been slow to come to terms with serious threats that come on more slowly. Think radiation or lead poisoning or DDT.
The long-term threats are real they are identified in dozens of articles in international research journals.
We need to worry about them NOW.
Exposure can come from contact, drinking water, eating fish or crabs, or just breathing. Aerosolized toxins have been measured a mile from the source. Toxins accumulate over time.
The ones who will suffer most in the long run are children around Lake Okeechobee who are swimming in the blooms, eating fish from the lake, and breathing the air.
Who will care about them 20 or 30 years from now?
Because it’s so horrifying, politicians prefer to ignore it. The state health department site used to say that it was only a problem if you “ingested large amounts”.
Television clips showed children swimming in blooms with no warning signs anywhere near.
A County Commissioner from a Lake Okeechobee Community announced on TV that it wasn’t toxic when it was it the lake.
Big Sugar has convinced some state legislators that it only becomes toxic when it hits the septic tanks of the coastal elite.
That’s irresponsible hogwash.
It’s also criminal negligence.
It is Florida’s Flint, Michigan.
Enough. We have a problem and we need to solve it.
WHAT CAN WE DO ABOUT IT?
While Floridians say they believe in climate change our politicians seem more interested in raising seawall and roadways than in reducing CO2 emissions.
One obvious root cause of the blooms is the state’s inability to control the increasing nutrient loads in agricultural runoff and urban development. Unless ordered by a federal court, the legislature seems to be incapable of passing effective water quality legislation that applies to farming.