(CN) – A Florida appeals court reluctantly approved permits for a pared-down phosphate mining project, noting that an exception written into state statutes allows projects in some cases to ignore consideration of cumulative impacts.
IMC Phosphates Company originally sought to develop a 20,000-acre phosphate mine on a creek that runs into the Peace River, which flows through southwestern Florida into the Charlotte Harbor estuary.
Environmental groups, including the Sierra Club, successfully fought a federal dredge-and-fill permit for a portion of the project, leading IMC to scale its project down to 4,000 acres, for which it then sought state permits. The smaller phosphate project is known as the “Ona Ft. Green Mine Extension.”
The Sierra Club joined the Peace River/Manasota Regional Water Authority and three downstream counties on another petition challenging Florida’s Department of Environmental Protection permitting for the scaled-down project. An administrative judge allowed IMC to exclude any evidence of cumulative impacts under a state-law exception and denied standing to the water authority, which was allowed to fully participate in proceedings.
The 2nd District Court of Appeal ruled that the water authority did have standing, because the mining would affect water flow in Horse Creek, a Peace River tributary. When not enough fresh water flows in the river, more brackish seawater seeps in and affects water quality.
IMC correctly invoked the cumulative impacts exception under state law because it mitigated lost wetlands by making new ones within the same watershed, the appeals court ruled.
The court declined to say whether the mitigation was adequate, stating that there was “evidence and counterevidence on this issue that could have supported a ruling either way.”
But the exception “essentially eviscerates” any intent to address the cumulative environmental impacts of projects in a watershed, the court opined.
Writing for the court, Judge Villanti noted that “if every project in the Horse Creek basin results in a slightly reduced streamflow, the cumulative impact of those projects will, at some point, become adverse.”
“[D]espite our misgivings, we cannot rewrite” the law, Villanti concluded. Because the water authority was allowed to fully participate in the proceedings, the court said it was not necessary to remand on the standing issue.
In a related ruling, Judge Davis of the same court upheld a decision to remand consideration of the permitting process, because the first administrative judge lacked facts to justify permit amendments and incorrectly interpreted Florida Department of Environmental Protection policies.