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Why it is hard to reach phosphate settlement

Published By: Sun Herald

Phosphate litigation lingers because Mosaic and Charlotte County can not agree on what it means to safeguard the Peace River and Charlotte Harbor. Scientists do not agree how phosphate mining impacts the flow of water in the Peace River.

Scientists representing Charlotte say that mining is currently causing adverse impacts to the Peace River. Scientists representing the Florida Department of Environmental Protection, the Federal Environmental Protection Agency and the Army Corps of Engineers believe mining is not causing adverse impacts and continue to grant mining permits.

There are good reasons scientists disagree. Scientists often disagree. When they are paid by adversarial parties they disagree more often.

Why water levels change

Is the water flow in the Peace River lower today because of phosphate mining or because of the lack of rainfall? Charlotte County has suggested the lower flows in the Peace River are caused by mining. The Southwest Florida Water Management District has suggested it appears to be primarily due to the lack of rainfall. Because weather patterns vary day to day, it is difficult to make exact comparisons. Without exact comparisons it is difficult for scientists to know for sure how much of the change in the flow and timing of the flow of the Peace River is related to phosphate mining.

Scientists look at historical data and make their best guesses. Historical data is sketchy and incomplete. Much of the scientific disagreement is based on taking sketchy historical data and projecting it into the future. Both sides' hypotheses about the future impacts are scientific guesses or possible causes and effects but not hard facts.

Impartial arbiter needed

We need is an impartial super-scientist to make a scientific determination of whether mining causes adverse impacts to the Peace River. There are several ways to try to create the impartial super-scientist.

We can litigate. This is the path we are on now. Litigation thrusts the administrative law judge into the position of evaluating complex science and sorting out conflicting testimony from scientists.

Because mining covers only 10 percent of the Peace River Watershed, it is difficult for a judge to understand how any change in any single piece of data makes a material impact to the overall Peace River. It is the scientific equivalent of the administrative law judge listening for the sounds of a second violin in a symphony.

A possible improvement to litigation is a three-person board of impartial science-based attorneys to review each situation and determine if the phosphate activity may cause a substantial adverse impact. That's the path of the proposed settlement.

Arbitration can take place before permitting or during mining operations. The ability to analyze mining operations after the permit is issued is new and a key improvement. There are also three people with science backgrounds analyzing and asking questions which may improve the odds of a more thoughtful science -based outcome.

We could skip litigation and arbitration by both parties agreeing to a specific definition of adverse impact. Include that language in a settlement agreement.

Scientists on either side cannot agree on the scientific definition of adverse impact. Lawyers can not agree on the legal language. So we litigate instead of settle. The lawyers and scientists get paid to disagree while Mosaic stockholders and Charlotte County taxpayers foot the bills.

Better data needed

Part of why scientists cannot agree is they do not have enough data from which to draw good conclusions. We need more extensive monitoring of the water flows in the creeks that feed the Peace River. Mosaic has agreed to spend more than $500,000 a year to create extensive monitoring of creeks which contribute water to the Peace River and which flow through their property. Monitors will be located above the mining sites and below the mining sites.

Need to define adverse impact

There should be some discussion about what changes in the water flow create an impact. If the flow above the mine is down four percent over the last two years, presumably because of rain, and the flow below the mine is down six percent, is the extra two percent a significant impact?

Is there some variation that should be allowed due to rainfall and other differences even in small areas? We need to find some areas of common understanding so we don't spend forever in binding arbitration like we have spent in litigation.

It is not possible to write a legal agreement covering every possible situation. We are likely to have future disputes about what the data means and whether or not variations in the data represent a significant adverse impact. We will need some sort of independent ruling body to make that binding determination.

Arbitration not litigation

Armed with better, but not perfect data, we think the three-person panel of independent science-based lawyers makes more sense compared to the current situation of an administrative law judge who does not have the more detailed monitoring data. The arbitration board will also have the power to rule on permits and on ongoing mining operations, whereas the administrative law judge can rule only on the permits to mine. If the more extensive monitoring data shows an impact then the arbitration panel can force Mosaic to stop mining and improve their operations which the administrative law judge can not.

We can move forward

The proposed settlement, which is a trust-but-verify system, is a significant improvement over the current litigation-based system. We encourage all the parties to find a way to resolve the adverse impact issue and move forward with the settlement.

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