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Court weighs environmental price of mining

By Craig Pittman, Times Staff Writer
In print: Sunday, October 12, 2008

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TAMPA — For nearly three hours, the lawyers argued. Every time they opened their mouths, all the dusty conflicts of the past eight years came crashing through.

But this fight was for the future.

One one side: the world's largest phosphate company, Mosaic, and the state agency in charge of permitting new mines. Their attorneys were defending new mines that will keep one of Florida's oldest industries in business for another generation.

On the other: three counties and a utility that lie downstream from newly proposed mines. They fear that Mosaic's destruction of wetlands may cut their water supply for growth.

"Phosphate mining is accomplished by the utter destruction of the natural environment," said John Thomas, who represents the Peace River-Manasota Regional Water Supply Authority.

For decades, phosphate miners have reshaped the landscape in Polk County's Bone Valley, excavating a key ingredient in fertilizer. But sometime in the next decade, those mines will peter out.

So Mosaic — formed from a merger between industry giants IMC and Cargill — wants to open at least three new mines along the Peace River and its tributaries in Hardee and Manatee counties, with another one later slated for the Pine Level area of DeSoto County.

At the Ona mine site in Hardee County, Mosaic has proposed excavating as deep as 50 feet across an area eight times as large as downtown Tampa. At its South Fort Meade mine, also in Hardee, and its Altman Tract mine, just south of the Hillsborough County line, the company is proposing thousands more acres of wetlands destruction that may affect the Peace River.

The river supplies water for a quarter-million people in Sarasota and Charlotte counties who consume 18-million gallons of water a day. That demand is expected to reach 32-million gallons a day over the next 15 years.

When something reduces the river's flow, saltwater from the Gulf of Mexico pushes upstream, which makes the river worthless for drinking. The river also is crucial to the health of Charlotte Harbor's estuary, the basis of Lee County's billion-dollar seafood and tourism industries.

So Charlotte, Lee and Sarasota counties have spent millions of dollars battling the new mines, trying to save the wetlands.

Mosaic spokesman David Townsend believes the opposition is misguided, because "for every wetland we're going to disturb, we're going to replace that wetland."

The company plans to create wetlands on the site once the mining is done, so "there is no unmitigated downstream impact," Mosaic's attorney, Steven Brannock, told judges of the 2nd District Court of Appeal at a hearing in Tampa last week.

However, repeated scientific studies have found that man-made wetlands are often a losing proposition. One 2003 study in New England by the Army Corps of Engineers found that only 17 percent of attempts to create wetlands really replaced the natural wetlands that had been destroyed.

During one round of the Florida phosphate battle, a judge looked at how well miners had been able to replace destroyed wetlands. Most of the man-made wetlands the miners created were not functioning as a natural swamp, he wrote, "despite the fact that most of them have been in existence for more than 15 years."

A 2007 study of the entire Peace River region found that — despite the state requiring developers and miners to replace wetlands they destroyed — thousands of acres of wetlands no longer existed. The counties are worried about the cumulative impact of all of Mosaic's mines on what's left.

"We're at the point now where 30,000 acres of wetlands are gone. Poof! Because these things are adding up," said David Caldevilla, a Tampa attorney representing Charlotte County.

A law passed eight years ago "provided a way to short-circuit a full-blown cumulative impact analysis," said attorney Francine Ffolkes of the state Department of Environmental Protection. The law says that as long as each set of man-made wetlands that are to be created is in the same area as the ones being destroyed, then each new mine will have zero impact on the environment.

"So if you've got five different mines that impact this region, nobody looks at the cumulative impact of this?" Judge Thomas Stringer asked.

The answer: no.

Over the past eight years, the phosphate giant has won nearly every legal battle. But in the past month Mosaic has suffered a pair of major setbacks.

First, Manatee County commissioners voted 4-3 to reject Mosaic's Altman Tract mine over wetland concerns. Mosaic responded with a $600-million suit alleging its property rights had been violated.

Meanwhile, environmental activists had sued to overturn a federal permit the Corps of Engineers issued to Mosaic to wipe out the Altman Tract wetlands. Last week the Justice Department notified them that the corps had suspended that permit, explaining "the corps has determined that it is in the public interest to revisit the analysis in support of the permit decision."

Environmental activists hailed the suspension as "a turning point" in the fight over phosphate. But to Mosaic, it's just a bump in the road to the future.

The resistance "is part of the process," Townsend said. "It takes years."