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03/03/2008

Phosphate agreement hits a snag

Published By: bradenton.com

By ROSALIE SHAFFER Special to the Herald

MANATEE -- An agreement that promises to end legal battles with a phosphate mining company, while providing better protection for regional watersheds, has hit a wall for now, though some of the parties are still talking.

For more than 9 months, Charlotte, Lee and Sarasota counties and the Peace River-Manasota Regional Water Supply Authority have been negotiating terms with the Mosaic mining company for a Phosphate Mining Compact. The effort grew out of settlement talks to resolve the counties' ongoing legal challenge to the proposed 4,167-acre Ona mine in Hardee County. But unless the commissions of all three counties and the water authority vote to approve the agreement, it may not happen.

The negotiation concept is for a "global settlement," whereby Mosaic would agree to more stringent standards for future regional mining of phosphate, a chemical used mainly in fertilizers. In exchange, the other parties would agree not to sue or comment on Mosaic's mining activities. Litigation, which has cost the counties more than $12 million, would be replaced with a dispute resolution process. The agreement would last for 15 years, but could be renewed for an additional 15.

Disagreements over terms threaten to derail the compact between the counties, the water authority and the Mosaic mining company.

"It's on the back burner," said Shannon Staub, Chairwoman of Sarasota County Commission. In a letter of reply to Lee County in February, she said, "At this time there are no plans for consideration of the compact."

Nora Patterson is seen as the key vote on the Sarasota commission, which ended talks on the current compact by a 3-2 vote in November. While two of the three commissioners were set in their opposition to it, Patterson left the door open for further discussions with Mosaic on points of concern. Having met with Mosaic attorney Richard Mack in January, she says, "With some they met me half way, some all the way and some they're holding off on."

Patterson said that Mosaic was willing to give on one sticking point - the prohibition against commenting to agencies regarding mining permits. However, Mosaic wants to add a new provision - one that could be a deal-breaker. Given that Lee County may not approve the compact, and it could go forward with just Charlotte, Sarasota and the Water Authority, Mosaic wants to be able to opt-out of the agreement in the event Lee County should file a legal challenge to its activities.

That stipulation in the compact would be a show-stopper for her, Patterson said.

"In its present form, I won't sign it. I won't sign it as long as Lee is the key. Mosaic wants the ability to drop out of the contract if Lee sues."

She said what could happen is that the counties would step back from getting involved in the permits for years, but then if Lee County decides to oppose one and sues, Mosaic could drop out of the agreement - and its obligations.

Dave Townsend, spokesman for Mosaic, said while the opt-out clause would be something Mosaic would be looking for, "That is not set in stone, and the company could still work to reach a middle ground."

Hailed by some as a means to save millions of tax dollars, as well as providing more stringent environmental standards, the compact has run into opposition by others claiming that the counties are giving up too much and getting back too little. According to a letter to the counties from retired attorney and compact opponent Richard Nelson, of Punta Gorda, the contract, "is designed to suppress any meaningful governmental protection of our water sources and estuary environment - two of the most valuable and precious assets of Southwest Florida."

Townsend defended the compact as accomplishing more than litigation has.

"The compact ensures greater environmental protections than the law requires," he said, and also includes a monitoring program and resources for future water supply solutions for the region.

Charlotte County approved the compact in November, but Lee County has not yet taken a vote on it.

According to Lee County Commission Chairman Ray Judah, Lee wants at least two things before it would approve the agreement - to have a meeting of all the counties involved in the negotiations, "to discuss the proposal before any further action is taken by any of the respective counties," he said. Lee also wants agreement to pursue an area-wide Environmental Impact Study.

But Mosaic opposes a multi-county meeting, preferring to work with each commission separately.

"We question what the value or purpose would be, that couldn't be addressed by meeting with each commission," said Townsend. He voiced concerns that the meeting would turn into a media circus that would serve no purpose "other than giving those who oppose the compact a good opportunity to raise their voices," he said.

Judah counters, "It's unfortunate that Mosaic is taking a position of divide and conquer. It's imperative that the counties and water authority work together to provide a regional solution to the issue."

Mosaic has tried to meet with Lee, but can't get a meeting. According to Judah, "Our counsel has recommended that members of our board not meet with Mosaic at this time, since we have ongoing litigation." He added however, that Lee's legal counsel could work with Mosaic on modification proposals and present those to the board. "That avenue of communication is certainly available to Mosaic," Judah said.

Mosaic says that's not the same as meeting with the commissioners face to face.

"Our desire is to meet with Lee County. We think it's important for them to speak with us directly. All they have received so far is a presentation from an attorney," Townsend said.

Manatee County is not a party to the compact, but is a member of the water authority. Commission chairwoman Jane von Hahmann, who represents Manatee on the water authority board, said she would vote in favor of the compact if the other counties on the board, which are parties to it, approve it.

For now, the ball seems to be in Mosaic's court.

"I'm still waiting for the phosphate folks to come back to the table," said Patterson.

Townsend says Mosaic will continue negotiating.

"It would be terribly unfortunate if, after nine months of hard work to forge a collaborative, forward-thinking resolution, we ended up back in a cycle of senseless litigation," he said.

However, some may prefer that the controversial issue go away, at least for a while. One official noted that this is an election year.

Rosalie Shaffer, Herald correspondent, may be contacted at: rshaffer@mail.org

Mining compact basics

• No mining or clay settling areas in the 100 year flood plain of the Peace River, Myakka River and designated tributaries.

• Financial assurance of $50 million to cover damage from clay-settling area discharges.

• Adherence to more stringent environmental standards in mining operations than currently required.

• Mosaic will provide the water authority with a site for a 5 to 6 billion gallon regional reservoir in Manatee or DeSoto County, within 20 years.

• Water quality monitoring program.

• Dispute resolution process.

• Counties and water authority will withdraw current litigation and comments, agree not to challenge future Mosaic mining activities, or make any comments in opposition to them to the permitting agencies.

• Mosaic agrees not to oppose the utility's use of water from the Peace River Basin

• Duration: 15 years, renewable for an additional 15 years.

Counties, mining company still talking

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