News And Updates
Published By: HeraldTribune.com
The Mosaic Co. spent six years in court defending its state permits for the 4,200-acre Ona mine near the Peace River. But when Lee and Sarasota counties contested a similar permit for a mine twice the size last year, the case catapulted through the judicial system in six months.
The speedy decision upholding the permit for the 10,000-acre South Fort Meade phosphate mine results from a new state law, not better environmental protection.
Now, Lee County wants the law overturned.
The county, which borders Charlotte Harbor to the south, has appealed the South Fort Meade ruling, arguing that the law is unconstitutional because it restricts due process.
The law is a sign of the mining industry's continuing clout in Tallahassee and came after local government opposition had significantly slowed phosphate's expansion. It put a 90-day limit on the counties to make their case that the mine would damage the Peace River and Charlotte Harbor, a process usually requiring six months to a year, lawyers said.
"In this case Mosaic already had all that information on hand with regard to their position on the issue," said Lee County Commission Chairman Ray Judah. "The expedited process really compromises the ability of those who are seeking relief to adequately prepare for a case."
When the Department of Environmental Protection issued the permit for the mine extension in July, the counties argued it would reduce water flow in the Peace River, irreparably destroy 500 acres of wetlands and diminish water quality in Charlotte Harbor.
The river is a drinking water source for Sarasota, Charlotte and DeSoto counties and flows into Charlotte Harbor, a significant tourist attraction and the state's most productive estuary for fish and shellfish.
Mosaic contends that Lee County had plenty of time to make its case, partly because it had experienced attorneys.
"Lee County had ample notice and a fair and full opportunity to challenge the approvals for the South Fort Meade Mine," Mosaic spokeswoman Kaley Miller said in a statement.
Since the late 1990s the DEP has been taken to court over almost every phosphate mine it has approved in Southwest Florida.
The new law was tacked on a bill last year reauthorizing the DEP's existence. It emerged as a compromise when the DEP wanted to reinstate the phosphate mining tax to help pay for the reclamation of old mining land. In return, phosphate industry lobbyists sought to streamline permitting through the courts.
Charlotte County has spent $12 million and a decade arguing in court that DEP permits did not adequately protect the environment. Lee and Sarasota counties and the Peace River/Manasota Regional Water Supply Authority later joined the fight.
One of the longest battles was over Ona, originally to span 20,000 acres. The counties and the authority challenged that mine in early 2003, and the judge gave them 18 months to develop their case, said Tampa attorney Ed de la Parte, who then represented Charlotte.
He said the judge allowed scientists about two months to survey the entire Ona site, which was reduced to 4,200 acres during the court dispute.
In contrast, scientists had only two days to survey the South Fort Meade site, said de la Parte and David Pearce, an attorney for Sarasota County.
"Did the law adversely affect our ability to prepare for and participate in the hearing? Yes," Pearce said.
Further, the new law also forced the judge to make a decision in 30 days.
For Ona, the judge spent seven months reviewing the case before deciding in March of 2005 that the permit needed improvement.
Three judges in Florida's 2nd District Court of Appeal upheld the Ona permit last month. Lee is asking for a rehearing before all 14 appellate judges.
Meanwhile, another state law that took effect this year allows Mosaic to break ground even though the case is on appeal. The company, however, still needs a permit from the U.S. Army Corps of Engineers.
That new law prevents any government appeal from automatically stopping progress on a permitted project.