Florida's Vanishing Wetlands
and the Failure of No Net Loss

Corps loses two wetland cases in court

Posted on July 15, 2010 8:22 p.m.
By Craig Pittman

It's been a rough couple of weeks for the Corps of Engineers, as federal judges in two high-profile Florida cases ruled that the federal agency in charge of protecting wetlands had failed to do so.

First came word that U.S. District Judge Royce Lamberth had tossed out the Corps permit for Cypress Creek Town Center, a controversial shopping mall planned for construction in the headwaters of the main water supply for Tampa.

In his 30-page ruling, the judge wrote: "The corps has failed to fulfill its statutory duties under (federal laws). Unfortunately, this is a familiar course of action for the corps when processing permit applications."

Lambeth said the Corps had failed to prepare a required environmental impact statement for the 500-acre mall site and failed to require the applicant to demonstrate that practicable alternatives were not available, as required by the Clean Water Act. The judge seemed particularly incredulous at the Corps' insistence that the 1-million-square-foot mall would not require any sort of cumulative impact study.

That assertion "flies in the face of logic," the judge wrote. "It not only may have an impact, it already has," he continued, referring to muddy water that discharged into Cypress Creek during site clearing work in 2008, which led to the developers being fined about $297,000.

Then U.S. District Judge Henry Lee Adams issued a temporary restraining order against the Corps' permit for the largest phosphate mining company in the world to proceed with digging up a 10,000-acre site in Hardee County. The judge ruled that the environmental groups suing to overturn the permit for Mosaic had a substantial likelihood of winning the case, and thus he halted any mining.

This may be a prime case of the Corps shooting itself in the foot. Environmental groups and local officials in Charlotte County (downriver from the mining) have long called for a cumulative impact study of the effects of mining on the Peace River, but the Corps has always said no. At last, however, the Corps agreed to such a study but only AFTER issuing the permit to Mosaic for expanding its Fort Meade Mine. That makes it easier for the plaintiffs to argue that the Corps' permitting decision was arbitrary and capricious.

A company spokesman contended that this showed the environmental groups were more concerned about saving wetlands than saving jobs: "The unfortunate fact here is the Sierra Club places a higher value on their national anti-mining agenda than on the economic well-being of Hardee County and its citizens, and the livelihoods of the hundreds of families that rely on our South Fort Meade mine,”

Then Mosaic, not averse to playing hardball, informed 221 employees that they might be laid off if the suit continues. But the news shocked the stock market, and shares of Mosaic dropped 8 percent in value.

Don't cry for Mosaic, though -- the company does have a few dollars to spend on acquiring its phosphate rock from other sources. But the big question is whether the Corps will change its permitting procedures. After all this is not even the first time this year the Corps has been told it's doing this wetlands protection thing wrong. So far, though, as we wrote in "Paving Paradise", what the Corps does offers the illusion of wetlands protection without actually saving anything.

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