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DIANE ROBERTSThe area around Fisheating Creek looks as it did in the 19th century. A preservation deal is on hold because it's not clear what all would be preserved.
In 1875, the Great Atlantic Coastline Railroad hired the poet Sidney Lanier to make Florida sound good to the paying public. At the time, Florida was the poorest, remotest and smallest Deep South state, with a population of well under 200,000. Lanier brought out the lyrical big guns, describing the "white columns of the cypress trunks, the silver-embroidered crowns of the maples, the green-and-white of the lilies along the edges of the stream," likening Florida to Heaven, Eden and Camelot.
Lanier's poetic advertising, along with national recruitment campaigns and exhortations from famous Yankees like Harriet Beecher Stowe, lured people down. Investors, settlers and tourists were seduced by the promise of healing warmth, sun-colored oranges, water bright as emeralds and property to be bought cheap. They all needed towns, roads, hotels, more railroads. Nature had to get out of the way.
So here is the great Florida paradox: We want to preserve the wild beautiful lands, and at the same time we want to live on the wild beautiful lands. Millions move here, sold on the idea of Florida as paradise, and so we build the hell out of the place, making the roads and houses and malls and schools they need. Ever since Henry Flagler saw the profit-making possibilities in a long coastline and a pleasant climate, Florida has struggled with competing priorities: River of Grass or fields full of sugarcane? Habitat or suburb?
And here is another Florida paradox: At the same time the state suffers from a plague of rapacious development, the state is buying up more and more land to save it from rapacious development. Florida spends more money and buys more acres for conservation than any state in the nation. Floridians say they care about the environment. In 1990, 75 percent of voters approved the 10-year, $3-billion Florida Preservation 2000 Act. They say they want the Everglades restored, the dunes protected, the panther given a decent chance to beat extinction. But there's also a vast demand for property, dedicated more to gated communities and golf courses than caracaras and scrub jays.
Still, the question of how we preserve our last, best places remains. Fisheating Creek in Glades County, just west of Lake Okeechobee, illustrates the tangled problems of saving Florida's treasures. Ancient cypresses line the creek, a home for rare swallow-tailed kites, otters, black bear and panther, as wild and remote as it was in 1845 when the territory became a state. The surrounding area looks as it did in the late 19th century when ranchers such as Henry Parker and Howell Tyson Lykes began to run cattle in South Florida. Everyone agrees it's a rare piece of Old Florida and must be saved. It's a "special place," says Howell Ferguson, CEO of Lykes Bros. and great-grandson of Howell Lykes. For David Guest, a lawyer with the national environmental group Earthjustice, it's "the most beautiful place in Florida."
A few days ago the Florida Cabinet was poised to pay the Tampa-based Lykes Bros. Inc., $24-million to keep 24,000 acres of wetlands, native range and marsh from ever being developed. The state wasn't buying the land outright; it was trying to obtain a "conservation easement," which is, in theory, a way to get more ecological bang for the buck. Lykes would get the cash, while continuing to own and manage the land; the company would agree to limit activities such as growing row crops or building houses, which might damage the ecosystem. It looked like a done deal.
But now the Cabinet vote on the easement has been postponed, and the governor and chief financial officer have ordered a renegotiation. The project is in limbo largely because Lykes wanted to retain the right to put a water well field on the land, the first time the state would have allowed such a provision on conservation lands.
Depending on whom you ask, this was going to be either another great moment in conservation, the idea of well fields merely hypothetical, or else it was a violation of the whole idea of conservation with the potential to wreck the very ecosystem the state says it's trying to save. Eric Draper of the Audubon Society favored the agreement, insisting the well field provisions, as well as Lykes' rights to explore for oil and gas, were mostly "meaningless words on a piece of paper." Victoria Tschinkel, Florida state director of the nonprofit Nature Conservancy, says that for their $24-million, Floridians would get the assurance "these incredibly biodiverse lands will forever be protected and never paved over."
Other environmentalists disagreed. "Why not buy the water rights from Lykes?" says Manley Fuller, president of the Florida Wildlife Federation. "If we have to pay them more, let's pay them more." And Guest, the Earthjustice lawyer who has been involved in litigation over Fisheating Creek for years, says flatly that the easement as it stood "gave taxpayers nothing" while violating state practice that "we do not use conservation lands for well fields."
Fisheating Creek is a long-running enviro-legal melodrama. In 1988, Lykes, which used to allow people to camp and hunt on some of its property, tried to close the creek, claiming that littering, poaching, and cattle rustling had got out of hand. In 1989, the state filed suit to make them reopen it.
For the next 10 years, Lykes and the state went mano a mano over who owned the creek, the company or the public. The dispute hinged on whether the creek is, in fact, navigable. The Florida Constitution mandates that lands under navigable waters belong to the state in trust for the people. A federal judge first ruled that Fisheating Creek was not navigable. A Glades County jury subsequently found that it was.
Finally, in 1999, the state settled with Lykes, paying $60-million to acquire 18,000 acres of land on either side of the creek outright and a conservation easement on a further 42,000 acres. Everyone declared victory.
The big Florida fights are always about water. Fisheating Creek is no exception. The 1999 conservation easement agreement forbids "commercial well fields for sale or transport of water." Eva Armstrong, director of the Division of State Lands, says this time "it was a must for Lykes to retain the rights to develop well fields." But she also says it's "not that big of a deal." Guest, chief trial counsel for the state and environmental organizations opposing Lykes in the 1990s, says it is a big deal: "It sets a precedent. What one landowner gets the others will want. And people don't reserve rights if they don't intend to exercise them."
A recent story by Craig Pittman and Julie Hauserman in the Times revealed that some in the Council of 100, business leaders who act as a sort of think tank-cum-lobbying group advising Florida governors (Times chairman and CEO Andrew Barnes is a member), would like to see a redistribution of Florida's water to feed Florida's galloping development. Big players such as Republican Party fundraiser Al Hoffman, whose company builds more planned communities than any other in Florida, and Clearwater-based developer Lee Arnold, feel that the state has overemphasized using water to protect the environment. As opposed to, say, using it to protect urban growth.
Now, water in Florida is a publicly owned resource. Indeed, the most recent draft of the conservation easement with Lykes removed the word "commercial" from the description of the well fields and replaced it with "public water supply." Florida law would have to change, and public sentiment would have to change, too, before Florida water becomes a commodity, as it often is in Western states.
However, with the Council of 100 due to go public this week with proposals for a system of statewide water distribution, with legislative leaders falling over themselves to be "business-friendly" - which means developer-friendly - and with a governor inclined to appoint judges like Frank Shepherd from the Pacific Legal Foundation, an anti-environmentalist property rights group, you can see why some environmentalists might be apprehensive about the state's latest attempt to reach an agreement with Lykes.
Appearances weren't helped when the Nature Conservancy, which negotiates conservation easement deals for the state, was shut out of some substantive discussions. And nobody seems to have thought it worth mentioning that there's plenty of fine water under the land. The South Florida Water Management District drilled test wells and found that at 550 feet and 928 feet the quality was excellent - good for a growing population in South Florida or good for the Fisheating Creek ecosystem, but probably not both.
Everyone agrees that the Lykes family have taken care of their place. Guest says, "Lykes Bros.' stewardship is the reason Fisheating Creek is the most beautiful place in Florida." The thousands of acres around the creek have, as Lykes CEO Ferguson says, remained substantially the same since the late 1930s: "The stewardship of the land has been an important value for us. We feel good that the land is well preserved."
But will it stay that way? The Florida Wildlife Federation's Fuller worries that some day there might be a pipeline running to Port Charlotte or Fort Myers: "Because of chronic mismanagement of Lake Okeechobee and the Caloosahatchee River, they need the water." He says, "You have to assume that potential could become reality." As Guest says, "The purpose of a conservation easement is to protect the forest, the wildlife and the rest of the ecosystem. If you suck the water out, the cypresses will die, the birds will die, everything will die."
But Ferguson points out that utilizing water on property which, after all, Lykes would continue to own, is "a right we already have." State Lands director Armstrong says that Lykes would have to get permits from the state and the water management districts: "The question is, are the water managements districts to be trusted?"
Environmentalists suggest the answer to that question is too often "no." Well fields allowed by the Water Management District in Pasco County are blamed for killing lakes and drying up wetlands for miles around. And when Armstrong asks, "What if it's in the best interest of the public to have a well field there?" Guest retorts, "It's better to use water to expand urban development than to preserve the ecosystem? If that's the decision, then don't buy a conservation easement."
So where do we go from here? Tschinkel insists deferral of a vote doesn't imply the death of the deal with Lykes: "Everybody is still talking to everybody else. The question is how far do you push the issue before the project falls apart and we have to put it back together again?" Manley Fuller of the Florida Wildlife Federation stresses that "the state's made a huge investment in Fisheating Creek so we want to make sure we get it right."