News-Pres

Exclusive: Caloosahatchee River in firing line of area water wars

Supply is sent to permitted users, leaving environment high and dry

By KEVIN LOLLAR klollar@news-press.com

August 2, 2011

http://www.news-press.com/article/20110802/GREEN/108020319/

It's an old story: In times of drought, some people get water, and some don't.

During South Florida's ongoing drought, water managers have continued to release water from Lake Okeechobee to agriculture, utilities and industry - entities that have what are known as consumptive use permits.

In March, managers stopped sending water down the Caloosahatchee River, which needs fresh water during droughts to maintain proper salinities and prevent environmental damage to the estuary.

Water from the lake is essential to help sustain Lee County's $2.5 billion tourism industry and South Florida's $3 billion to $4 billion agriculture industry.

When water supplies dwindle, animosity can arise between environmental and agricultural interests, with both sides questioning water management policies.

Although the U.S. Army Corps of Engineers has the final say on water allocation, the South Florida Water Management District makes recommendations to the Army Corps about who gets water and when.

Water district officials say state law dictates that permitted users must receive water during shortages.

"The state allows the use of water through a permitting scenario that gives the user a certainty that he'll have water available for the duration of the permit," said Terrie Bates, director of the district's Water Resources Division. "If you're building a facility, and you need 2 million gallons of water a day, you won't invest if you're concerned that three years from now, somebody will take your water away.

"Yes, we have environmental problems, but we can't solve them by taking water from permitted users."

Subject to interpretation

There are almost 750,000 acres of irrigated agricultural land in the Lake Okeechobee Service Area, including 138,000 in the Caloosahatchee basin.

The biggest piece of the service is the Everglades Agricultural Area, with about 542,000 acres under cultivation. Almost 90 percent of that is sugarcane - the sugar industry is worth $2.5 billion.

Local estuary watchers don't buy the argument state law guarantees water to permitted users, particularly the agriculture industry.

(Page 2 of 5)

"It's a stretch," said Kurt Harclerode, operations manager with Lee County's Division of Natural Resources. "Their attorneys have come up with an interpretation that says if the district does anything that might affect permitted users, they could go after the district. The whole time, the estuary suffers."

2010-11 drought

From Oct. 2 through July 25, the 16-county water district's rainfall was 10.43 inches below average. The Southwest Coast basin, which includes Lee and Collier counties, was 9.51 inches below average.

In October 2010, the Army Corps started environmental releases to the Caloosahatchee estuary and made its last releases March 18. During that time, the Corps released 90,480 acre-feet, or 29.48 billion gallons, of water.

Agriculture, too, suffers during drought, and its interests question water policy.

On May 19, the water district imposed a 45 percent water reduction on agricultural water users.

Many crops are stressed, and Judy Sanchez, spokeswoman for U.S. Sugar Corp., said water released down the Caloosahatchee from October to March should have been stored in Lake Okeechobee.

"They released water through the fall and winter, into the spring, well after the forecast predicted extremely dry weather," she said. "It's not as if we haven't been through this before. They know what an approaching drought looks like, feels like and smells like."

Adaptive protocols

Lake Okeechobee is at the center of South Florida's water supply.

As long as lake levels are within what water district officials call "the sweet spot" - 12.5 to 15.5 feet - everything is fine.

When lake levels rise above the sweet spot, added pressure threatens to breach the Herbert Hoover Dike, which was built in the 1930s, and the Army Corps must release water down the Caloosahatchee.

When lake levels drop below the sweet spot, water managers must decide how much water, if any, will be released to the river and how much will go to permitted users.

From the early 20th century to the early 21st century, the Army Corps controlled water levels in the lake based on a series of regulation schedules.

(Page 3 of 5)

In 2008, the Army Corps adopted its Lake Okeechobee Regulation Schedule, usually called LORS, under which lake levels are kept about 1 foot lower than the previous schedule, thus protecting the dike.

During water shortages, the lake is managed for multiple purposes, including the environment.

To help the Corps decide how much water should be released from the lake, the water district developed a document called Adaptive Protocols for Lake Okeechobee Operations.

Keeping the lake at 1 foot lower in the past means that the lake can't store as much water, which presented a problem for the district.

"When the Corps decided to lower the top end, we said, 'How can we help the estuary when we've lost storage?'" water district engineer Cal Neidrauer said. "We called it 'mission impossible.'

"The adaptive protocols attempt to clarify recommendations to the Corps, primarily for water supply. We had to thread the needle to improve the system as well as we could."

The adaptive protocols, which Tommy Strowd, the district's deputy executive director of operations and maintenance resources called "a document only an engineer could love," is built on a complicated series of if-then conditions based on the regulation schedule.

"We didn't throw out any babies with the bath water," Strowd said of the adaptive protocols. "We considered the lake's health and the estuary's health. We make recommendations, and the corps makes the call."

Only once has the Army Corps not followed the water district's recommendation: On March 4, the district suggested releases to the Caloosahatchee be stopped, but Col. Alfred Pantano, the Corp's Jacksonville District commander, disagreed.

"At that time, Col. Pantano was receiving feedback from various interests, and he wanted to take another look," Corps engineer Sean Smith said. "He felt it was important enough to provide the estuary with available water that would not have a large effect on lake stages. That water would lessen the amount of time the estuary would be exposed to no flow."

(Page 4 of 5)

State law and water

Meanwhile, no matter what the regulation schedule suggests, permitted users receive water, though, during drought, their allocation can be reduced.

Water district officials say that, under Florida law and the Florida Administrative Code, permitted users are entitled to water during drought when the environment isn't.

Estuary watchers, however, point to a chapter in the code that states, during a water shortage, "the District will equitably distribute available supplies to prevent serious harm to the water resources."

Another issue is the idea of "shared adversity:" South Florida is now in Phase III extreme water shortage restrictions, and according to the code, "Phase III or greater water shortage restrictions shall be implemented allowing for a shared adversity between consumptive use and water resource needs."

But the key rule, Bates said, is found in a chapter of the code that states, "An existing permit will not be subject to revocation or modification" unless the water district has identified "new or alternative water sources" to fill the permitted user's needs.

The district is acting within the law when it reduces a permitted user's water allocation, because a reduction is not a modification of the permit, Bates said.

"Every permit issued is subject to water shortage rules,"she said. "We can temporarily reduce allocations to get through drought conditions."

Minimum flows

Another legal issue is that, under state law, water districts must set minimum flows and levels for most water bodies. A minimum flow is the least amount of water necessary to prevent environmental damage to the water body.

In 2001, the water district adopted a minimum flow of 300 cubic feet per second for the Caloosahatchee. With no releases from the lake, the river is not getting its minimum flow.

"If you look at the law, it says they should be providing minimum flows to the Caloosahatchee," Harclerode said. "They're ignoring the state rule."

District officials realized minimum flows for the river would not be met during droughts because the system has been altered by drainage and development, Bates said.

(Page 5 of 5)

In other words, water no longer flows naturally into the river from its tributaries, and there is no place to store water during wet periods so it could be released in droughts.

The answer, Bates said, is to create storage areas, such as the C-43 reservoir, which is designed to store 55 billion gallons of water just south of the Caloosahatchee in Hendry County. The $338 million project's implementation plan is finished and ready for congressional authorization and funding.

Looking for change

Nobody is ever satisfied during a South Florida drought.

Permitted users want their fair share of the water pie, while environmentalists want equity and shared adversity.

Many people, including Charles Dauray, former Southwest Florida representative on the water district's governing board, believe the system needs to change. Dan DeLisi, Southwest Florida's district representative, was out of the country and couldn't be reached for comment.

"Here on the west coast, water is not only for the environment, but it's also what sustains our economy," Dauray said. "Do you think ag folks are in the business because they love it? They're in it for the money.

"I fully understand those permits are contracts. You can't deny them that water. But I would like to see water for environmental purposes somehow have the same legal rights as other permits. The adaptive protocols need to be reviewed."

Dave Westra, owner of Lehr's Economy Tackle in North Fort Myers, has been watching and fishing in the Caloosahatchee for 40 years.

He's seen massive releases from Lake Okeechobee turn the river completely fresh, and he's seen the river with high salinities because of low or no releases.

"The river is a tidal river," he said. "To be healthy, it needs decent tidal inflow and tidal outflow. But sometimes it's all salt coming in, and others it's all fresh going out. The river never has time to settle itself up.

"I'm sure the system could be managed better. The only answer I see is to finish the C-43 reservoir, get that thing built and give the river its natural function."

"It's a stretch," said Kurt Harclerode, operations manager with Lee County's Division of Natural Resources. "Their attorneys have come up with an interpretation that says if the district does anything that might affect permitted users, they could go after the district. The whole time, the estuary suffers."

2010-11 drought

From Oct. 2 through July 25, the 16-county water district's rainfall was 10.43 inches below average. The Southwest Coast basin, which includes Lee and Collier counties, was 9.51 inches below average.

In October 2010, the Army Corps started environmental releases to the Caloosahatchee estuary and made its last releases March 18. During that time, the Corps released 90,480 acre-feet, or 29.48 billion gallons, of water.

Agriculture, too, suffers during drought, and its interests question water policy.

On May 19, the water district imposed a 45 percent water reduction on agricultural water users.

Many crops are stressed, and Judy Sanchez, spokeswoman for U.S. Sugar Corp., said water released down the Caloosahatchee from October to March should have been stored in Lake Okeechobee.

"They released water through the fall and winter, into the spring, well after the forecast predicted extremely dry weather," she said. "It's not as if we haven't been through this before. They know what an approaching drought looks like, feels like and smells like."

Adaptive protocols

Lake Okeechobee is at the center of South Florida's water supply.

As long as lake levels are within what water district officials call "the sweet spot" - 12.5 to 15.5 feet - everything is fine.

When lake levels rise above the sweet spot, added pressure threatens to breach the Herbert Hoover Dike, which was built in the 1930s, and the Army Corps must release water down the Caloosahatchee.

When lake levels drop below the sweet spot, water managers must decide how much water, if any, will be released to the river and how much will go to permitted users.

From the early 20th century to the early 21st century, the Army Corps controlled water levels in the lake based on a series of regulation schedules.

In 2008, the Army Corps adopted its Lake Okeechobee Regulation Schedule, usually called LORS, under which lake levels are kept about 1 foot lower than the previous schedule, thus protecting the dike.

During water shortages, the lake is managed for multiple purposes, including the environment.

To help the Corps decide how much water should be released from the lake, the water district developed a document called Adaptive Protocols for Lake Okeechobee Operations.

Keeping the lake at 1 foot lower in the past means that the lake can't store as much water, which presented a problem for the district.

"When the Corps decided to lower the top end, we said, 'How can we help the estuary when we've lost storage?'" water district engineer Cal Neidrauer said. "We called it 'mission impossible.'

"The adaptive protocols attempt to clarify recommendations to the Corps, primarily for water supply. We had to thread the needle to improve the system as well as we could."

The adaptive protocols, which Tommy Strowd, the district's deputy executive director of operations and maintenance resources called "a document only an engineer could love," is built on a complicated series of if-then conditions based on the regulation schedule.

"We didn't throw out any babies with the bath water," Strowd said of the adaptive protocols. "We considered the lake's health and the estuary's health. We make recommendations, and the corps makes the call."

Only once has the Army Corps not followed the water district's recommendation: On March 4, the district suggested releases to the Caloosahatchee be stopped, but Col. Alfred Pantano, the Corp's Jacksonville District commander, disagreed.

"At that time, Col. Pantano was receiving feedback from various interests, and he wanted to take another look," Corps engineer Sean Smith said. "He felt it was important enough to provide the estuary with available water that would not have a large effect on lake stages. That water would lessen the amount of time the estuary would be exposed to no flow."

State law and water

Meanwhile, no matter what the regulation schedule suggests, permitted users receive water, though, during drought, their allocation can be reduced.

Water district officials say that, under Florida law and the Florida Administrative Code, permitted users are entitled to water during drought when the environment isn't.

Estuary watchers, however, point to a chapter in the code that states, during a water shortage, "the District will equitably distribute available supplies to prevent serious harm to the water resources."

Another issue is the idea of "shared adversity:" South Florida is now in Phase III extreme water shortage restrictions, and according to the code, "Phase III or greater water shortage restrictions shall be implemented allowing for a shared adversity between consumptive use and water resource needs."

But the key rule, Bates said, is found in a chapter of the code that states, "An existing permit will not be subject to revocation or modification" unless the water district has identified "new or alternative water sources" to fill the permitted user's needs.

The district is acting within the law when it reduces a permitted user's water allocation, because a reduction is not a modification of the permit, Bates said.

"Every permit issued is subject to water shortage rules,"she said. "We can temporarily reduce allocations to get through drought conditions."

Minimum flows

Another legal issue is that, under state law, water districts must set minimum flows and levels for most water bodies. A minimum flow is the least amount of water necessary to prevent environmental damage to the water body.

In 2001, the water district adopted a minimum flow of 300 cubic feet per second for the Caloosahatchee. With no releases from the lake, the river is not getting its minimum flow.

"If you look at the law, it says they should be providing minimum flows to the Caloosahatchee," Harclerode said. "They're ignoring the state rule."

District officials realized minimum flows for the river would not be met during droughts because the system has been altered by drainage and development, Bates said.

In other words, water no longer flows naturally into the river from its tributaries, and there is no place to store water during wet periods so it could be released in droughts.

The answer, Bates said, is to create storage areas, such as the C-43 reservoir, which is designed to store 55 billion gallons of water just south of the Caloosahatchee in Hendry County. The $338 million project's implementation plan is finished and ready for congressional authorization and funding.

Looking for change

Nobody is ever satisfied during a South Florida drought.

Permitted users want their fair share of the water pie, while environmentalists want equity and shared adversity.

Many people, including Charles Dauray, former Southwest Florida representative on the water district's governing board, believe the system needs to change. Dan DeLisi, Southwest Florida's district representative, was out of the country and couldn't be reached for comment.

"Here on the west coast, water is not only for the environment, but it's also what sustains our economy," Dauray said. "Do you think ag folks are in the business because they love it? They're in it for the money.

"I fully understand those permits are contracts. You can't deny them that water. But I would like to see water for environmental purposes somehow have the same legal rights as other permits. The adaptive protocols need to be reviewed."

Dave Westra, owner of Lehr's Economy Tackle in North Fort Myers, has been watching and fishing in the Caloosahatchee for 40 years.

He's seen massive releases from Lake Okeechobee turn the river completely fresh, and he's seen the river with high salinities because of low or no releases.

"The river is a tidal river," he said. "To be healthy, it needs decent tidal inflow and tidal outflow. But sometimes it's all salt coming in, and others it's all fresh going out. The river never has time to settle itself up.

"I'm sure the system could be managed better. The only answer I see is to finish the C-43 reservoir, get that thing built and give the river its natural function."