Following is a letter sent from Jaclyn Lopez and Rachel Curran to the Bradford
County commissioners, on behalf of the Center for Biological Diversity. It is well documented, all-encompassing and self explanatory.
OSFR is very pleased to see this document and supports it wholeheartedly.
Comments by OSFR historian Jim Tatum.
-A river is like a life: once taken, it cannot be brought back-
August 31, 2016
Bradford County Board of County Commissioners
945 North Temple Avenue
Starke, FL 32091
RE: Proposed HPS II Phosphate Mine; Special Use Permit #Z2016-0026
On behalf of the Center for Biological Diversity and its members, some of whom live and recreate in Bradford County, thank you for considering this letter and its contribution to the substantial, competent evidence in the administrative record concerning the proposed HPS II Phosphate Mine special use permit application.
HPS II Enterprises (“HPS II”) has proposed a massive 10,775 acre phosphate mining operation spanning large portions of both Union and Bradford counties. The Bradford County portion comprises 5,352 acres of the total project area, of which HPS II has determined 2,187 acres are wetlands. After Union County enacted a mining moratorium on April 18, 2016, HPS II submitted its Master Mine Plan dated April 21, 2016 for the Bradford portion of the project. We have reviewed the HPS II Master Mine Plan, the special use permit application submitted April 29, 2016, the Bradford County Comprehensive Plan, accompanying Land Development Regulations, zoning and future land use maps, and relevant Board of County Commission (“Board”) meeting minutes, and conclude the Board must deny the special use permit application, or in the alternative, implement a moratorium on the processing of mining permit applications for reasons fully explained below.
- Public participation and input must inform the Board’s policy-making phosphate mine decisions.
The Board appears to be improperly excluding public testimony from its decision-making on both the pending permit and the proposal to initiate a moratorium. The Bradford County Attorney has repeatedly stated in both the news media and county commission meetings that once a permit application is filed for the Board of County Commissioner’s consideration, the Board becomes a quasi-judicial body, and that “in those cases, it’s really not appropriate when the board hears comment or testimony on the issue.” Statements like these appear to misconstrue the nature of local government land use decision-making in Florida.
The decision to enact a moratorium to allow the Board time to fully consider a phosphate mining ban, or alternatively to adopt mining Land Development Regulations that adequately protect Bradford residents is not a quasi-judicial decision, but rather represents a quasi-legislative function of the Board’s governance. Phosphate mining is a public policy concern, and the setting of public policy must be informed by the public. Thus far, the Board has allowed the timing of the special permit application to obfuscate that role by misapplying the quasi-judicial ex-parte communication ban to communications between the Board and the public it serves.
Furthermore, because the pending decision on the HPS II application affects so many of Bradford County’s residents, and because the Board has neither previously considered a phosphate mine operation nor seriously contemplated phosphate mining in its Comprehensive Plan or Land Development Regulations, whether the permit decision itself is in fact a quasijudicial decision (where established policy is applied to a particular set of facts) is not settled. It is possible that the special use permit decision, in addition to the moratorium consideration, is a formulation of public policy, and thus quasi-legislative in nature.
Even if the pending permit decision were quasi-judicial, the Florida Legislature has established a process whereby local governments can disclose ex-parte communications prior to or at the public hearing where a vote is taken on the matter so that interested parties may have an opportunity to respond, thus removing any presumption of prejudice. In the furtherance of a participatory and open government, we encourage the Board to adopt by resolution or ordinance the disclosure procedures provided by §286.0115, Fla. Stat., and apply them to both pending and impending permit decisions.
Land use decision-making bodies like the Board should foster open communication on land use issues by conducting workshops and seeking public testimony and written public comments on pending matters whenever possible. Such public participation not only makes for a more transparent decision-making process, but in the event of a quasi-judicial land use proceeding, also helps to ensure that substantial, competent evidence is in the record for the Board to base its informed decision upon in accordance with Florida law.8
- The Board should enact a moratorium on the processing of pending and impending mining permit applications.
In light of the above, we encourage the Board to reschedule previously canceled public workshops concerning the proposed mine,9 and to adequately notice any future public meetings, including emergency meetings, during which the proposed mine or a mining moratorium is to be discussed. We also encourage the Board to rescind its March 31, 2016 vote at an inadequately noticed emergency hearing during which the Board voted—after little public input—to reject the recommendation of the North Central Florida Regional Planning Council to adopt a moratorium on accepting new mining permit applications. A motion to rescind the March 31, 2016 vote on April 21, 2016 already failed despite numerous public comments showing the public was unaware of the March 31st emergency meeting.10
We ask the Board to move to implement a moratorium on the processing of mining applications. A local government moratorium on the processing of applications submitted prior to adoption of the moratorium ordinance has legal precedent in Florida. In WCI Communities, Inc. v. City of Coral Springs, the Fourth District Court of Appeals held that the city’s nine-month temporary moratorium on the processing of site plan applications for multi-family development did not violate the applicant’s due process rights or constitute a temporary taking, as the moratorium was rationally related to the city’s attempt to preserve the status quo while it formulated a regulatory land use scheme to address concerns brought about by the application.11 In fact, as the Supreme Court noted in Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, moratoria are
may include a disclosure process for ex-parte communications, including written communications, as well as the Board’s policies concerning public testimony in land use matters. We requested these procedures on Aug. 1, 2016. To date, county staff have been unable to locate the document. See E-mail correspondence from Bradford County Attorney Will Sexton dated Aug. 11, 2016.
8 De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957).
9 The Board’s decision to cancel the public workshop scheduled for April 29, 2016 was based in part on Attorney Sexton’s representation on April 21, 2016 that HPS II had already submitted its permit application earlier that day.
See Bradford Board of County Commission Approved Minutes, April 21, 2016 Board of County Commission Meeting Recording at 2:28:00 – 2:33:20, http://www.bradfordcountyfl.gov/Approved%20Minutes/BOCC%20Recordings/Requested%20Recordings/04-2116%20Regular%20Meeting/2016.04.21__18.34.mp3.
10 Bradford Board of County Commission Approved Minutes, April 21, 2016. The motion to rescind failed even though it received a majority, since it required 4 out of 5 votes, http://www.bradfordcountyfl.gov/Approved%20Minutes/BOCC%20Recordings/Requested%20Recordings/04-2116%20Regular%20Meeting/2016.04.21__18.34.mp3.
11 WCI Communities, Inc. v. City of Coral Springs, 885 So. 2d 912, 916 (Fla. Dist. Ct. App. 2004) (“An emergency is not required to justify the use of this tool. Clearly, such a moratoria constituted a legitimate governmental purpose.”).
used widely among land-use planners to preserve the status quo while formulating a more permanent development strategy.
12 Just as the City of Coral Springs undertook a comprehensive review of its land use regulations during its application processing moratorium period, so too should the Board. As the North Central Florida Regional Planning Council has previously advised the Board, the county’s current Land Development Regulations are woefully inadequate to address a large-scale phosphate mine operation.13 If, after the moratorium period expires, the Board approves the mine permit, it must at a minimum have updated Land Development Regulations in place designed to minimize impacts to adjacent land uses, wildlife, and the welfare of Bradford county residents.
III. Approval of the proposed project may subject Bradford County to liability for Endangered Species Act violations.
Upon information and belief, HPS II has not applied for an Endangered Species Act (“ESA”) permit to take listed species, nor has any federal agency engaged in consultation on its behalf. Therefore, should the Board approve the proposed mine, it may expose the county to ESA liability for the unauthorized take of listed species. “Take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 14 Within the definition of take, “harm” means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.15 “Harass” is further defined by regulation as “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering.16 Not only is it unlawful for any person to take a listed a species, Section 9(g) makes it equally unlawful for third parties to “solicit another to commit, or cause to be committed” a take.17
The Santa Fe River Basin is home to a wide variety of wildlife, including the endangered oval pigtoe and red-cockaded woodpecker, and the threatened flatwoods salamander and eastern indigo snake.18 The gopher tortoise and striped newt, candidate species for Endangered Species Act listing, are also present, as well as the gopher frog and alligator snapping turtle, which the U.S. Fish and Wildlife Service is considering for listing.19 All eight of these species may be
12 Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 337 (2002).
13 Steve Koons, AICP, Executive Director, North Central Florida Regional Planning Council, Statement to Board,
April 21, 2016, Board of Bradford County Commissioners Approved Meeting Minutes,
http://www.bradfordcountyfl.gov/Approved%20Minutes/BOCC%20Recordings/Requested%20Recordings/04-2116%20Regular%20Meeting/2016.04.21__18.34; County Attorney Will Sexton Statement to Board, March 31, 2016,
Board of Bradford County Commissioners Approved Meeting Minutes,
http://www.bradfordcountyfl.gov/Approved%20Minutes/BOCC%20Recordings/Requested%20Recordings/03-3116%20Emergency%20Meeting/2016.03.31__18.33.mp3; 14 16 U.S.C. § 1532.
15 50 C.F.R. § 17.3.
17 16 U.S.C. § 1538(a)(1)(B); 16 U.S.C. § 1538(g).
18 U.S. Fish & Wildlife Service Environmental Conservation Online System, http://ecos.fws.gov/ecp/.
found within or near the project area and may suffer harm if the Board permits the proposed phosphate mine. For example, the entire length of the New River running through the middle of the proposed project is designated critical habitat for the oval pigtoe. The downstream portions of the New River, as well as the confluence with the Santa Fe River and portions of the Santa Fe River immediately downstream from the project area are also designated oval pigtoe critical habitat. Should the project modify or degrade the rivers, that could result in the unpermitted take of the oval pigtoe and would be in violation of the ESA’s Section 9 prohibition on take.
Relevant to the Board’s decision here, courts have imputed ESA liability upon government entities for sanctioning activities of third parties that result in take. The 11th Circuit Court of Appeals has established that both the refusal of a county government to ban a harmful activity and a county’s inadequate regulation of a harmful activity negatively impacting endangered species are sufficient to establish liability for the ESA’s take prohibition. If the Board permits the proposed mine, Bradford County could be held liable for take of endangered species, including take resulting from habitat degradation. To avoid this liability, HPS II would first need to apply for and receive an incidental take permit from the U.S. Fish and Wildlife Service, or be covered by a federal agency’s incidental take statement. The ESA requires a Habitat Conservation Plan be submitted for each endangered species for which incidental take is sought. Habitat Conservation Plans must specify: “(i) the impact which will likely result from such taking; (ii) what steps the applicant will take to minimize and mitigate such impacts, and the funding that will be available to implement such steps; (iii) what alternative actions to such taking the applicant considered and the reasons why such alternatives are not being utilized; and (iv) such other measures that the [issuing agency] may require as being necessary or appropriate for purposes of the plan.” There is no indication that HPS II has applied for a take permit, or that it has applied for a federal permit that would require ESA consultation.
- Florida law prohibits the Board from permitting the mine as proposed because it is inconsistent with Bradford County’s Comprehensive Plan
Florida’s Community Planning Act states “that no public or private development shall be permitted except in conformity with comprehensive plans, or elements or portions thereof.” Section 14.6 of Bradford County’s Land Development Regulations titled “Special Permits for Mining” state, in pertinent part, “the County shall limit mining operations to those areas shown on Illustration A-XI of the Future Land Use Map Series of the County’s Comprehensive Plan entitled Mining Areas.” A comparison of the Mining Areas map of the Future Land Use Map Series in the Bradford County Comprehensive Plan and the project boundaries maps provided in the HPS II Enterprises Master Mine Plan reveals the southernmost portion of the proposed mine appears to fall outside the areas designated for mining in the county’s Comprehensive Plan. Specifically, the portion of the mine planned within Section 8, Township 7 South, Range 20 East, with County Road 235 abutting its eastern boundary and County Road 18 abutting its southern boundary, is located in an area that is not designated for mining in the Comprehensive Plan. Instead, this portion of the proposed mine is an area zoned as Rural Residential, adjacent to the border of the town of Brooker’s northeastern corner, wholly within a designated Urban Development Area. The HPS II map of the southern portion of the mine and Bradford County’s Mining Areas map are shown in Figure 1 below.
Industrial phosphate mining and residential areas are not compatible uses. This is why the Board had the foresight when developing its Comprehensive Plan to preclude the issuance of special use permits for mining in residential areas by eliminating them from the designated Mining Areas portrayed in the Future Land Use Map Series of the Bradford County Comprehensive Plan. Accordingly, the Board must deny the special use permit, as the proposed use requested is inconsistent with the county’s Comprehensive Plan.
- The Board must consider the risk posed by HPS II’s inexperience in the mining industry, demonstrated by a series of recent violations.
HPS II representatives claim the proposal is a “Green mine,” employing an as yet untested method for “rapid”, 90-day reclamation involving the use of chemical flocculating agents to recombine sand, clay, and overburden, obviating the need for clay settling areas. The business of phosphate mining is highly complex and prone to environmentally disastrous mistakes even with the most experienced mining companies at the helm. The world’s largest phosphate mining company, Mosaic Fertilizer, Inc., recently settled an EPA lawsuit for $2 billion for the improper storage and disposal of hazardous wastes at 8 of its facilities, 6 of which are located in Florida. The Board must consider the wisdom of allowing a new, inexperienced player to the field that will undoubtedly stumble as it embarks upon its very first phosphate mining operation.
HPS II has already faced three administrative actions: a March 15, 2016 Notice of Violation from the Suwannee River Water Management District for unpermitted dredge and fill activities in wetlands, and the unpermitted construction of surface water management systems, including drainage channels and ditches; a Consent Order dated March 9, 2016 in which HPS II admitted the construction of 38 water wells, also without permits from the Suwannee River Water Management District; and a Petition for Administrative Hearing dated June 1, 2016 concerning an HPS II well-constructed on property it did not own without permission from the rightful landowner. Should the Board permit the proposed mine despite this troublesome history, it should at least put in place sufficient bonding requirements as a condition of approval.
Please give due consideration to the overwhelming public opposition to this proposed mine, the potential harm to endangered species and their habitats, the requirements of Bradford County’s Comprehensive Plan, and the recent history of HPS II’s missteps. In light of this information, the Board must deny the permit, or alternatively, implement a moratorium on processing mining permit applications to allow for further consideration and the enactment of an adequate land development regulation scheme.
Thank you for considering these comments. Please do not hesitate to contact me any questions or concerns at [email protected] or 727-490-9190.
[signature] Rachael Curran [signature] Jaclyn Lopez
Staff Attorney and Florida Director