Stumbling Toward Success: A Story of Adaptive Law and Ecological Resilience

In late 1998, birders and biologists in central Florida were thrilled to observe a record number of species visiting the Lake Apopka restoration project. Unfortunately, what initially appeared to be a great ecological restoration success story soon turned into an ecological nightmare. By March of 1999, hundreds of birds were sick and dying. As the National Audubon Society reported shortly thereafter, “hundreds of fish-eating birds were dying, some convulsing and bleeding from the eyes and beak, symptoms of pesticide poisoning.” The poisoned birds included protected species such as American white pelicans, wood storks and even the bald eagle. By 1999, the St. Johns River Water Management District (“SJRWMD”), the agency in charge of the Lake Apopka restoration project, saw itself morph from the natural resources agency responsible for a successful project that attracted record numbers of birds to the subject of a federal criminal investigation for alleged violations of several federal laws including the Endangered Species Act (“ESA”), the Migratory Bird Treaty Act (“MBTA”), and the Bald and Golden Eagle Protection Act (“BGEPA”). At this point, SJRWMD could have chosen to throw in the towel on its Lake Apopka restoration efforts and shift all of its resources and attention to defending itself against the criminal allegations. Instead, SJRWMD chose to push on and continue with the restoration project, and use the bird kill tragedy to guide future research and restoration decisions. In other words, SJRWMD chose to “adapt” to the new information gleaned from the tragedy and learn from its mistakes, a process fairly characterized as “adaptive management.” For decades, scientific and legal scholars alike have promoted the concept of “adaptive management” as a necessary approach to meaningful environmental management, restoration, and regulation. Unfortunately, adaptive management success stories are few and far between. The Lake Apopka Restoration Project provides a real-world illustration of adaptive management at work. In this Article, I use adaptive management theory to explore mechanisms to make environmental law better able to address the uncertainties and changing nature of natural systems to restore and protect ecological resilience using the Lake Apopka restoration project as a case study. The case study involves more than fifty years of experience with environmental contamination, pollution control, clean-up, and restoration and demonstrates the need for an adaptive approach to respond to new information, unintended consequences, and changed economic and ecological circumstances. The case study involves a number of federal and state regulatory and incentive-based programs. This Article evaluates which approaches used on Lake Apopka were “adaptive” and which were not and how a multifaceted approach using a number of complex regulatory and non-regulatory tools may be needed to adequately deal with environmental restoration issues. Specifically, this Article takes an in-depth look at what SJRWMD did to shift Lake Apopka back to its non-eutrophic state and to reintroduce resilience mechanisms back into the lake. The Article also evaluates the adaptations that were necessary at virtually every step in the restoration process to respond to legal losses, changed circumstances, new scientific understandings, unintended consequences of restoration activities, and even tragic mistakes. The Article concludes by offering observations on the lessons from Lake Apopka that can be used to make future environmental restoration projects more adaptive and more successful at restoring ecological resilience.