Center For Biological Diversity et al v. U.S. Army Corps of Engineers et alMOTION for summary judgment and Supporting Memorandum of LawM.D. Fla.June 30, 2017UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division CENTER FOR BIOLOGICAL DIVERSITY; MANASOTA-88, INC; PEOPLE FOR PROTECTING PEACE RIVER; and SUNCOAST WATERKEEPER, Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS; LT. GEN. TODD T. SEMONITE, in his official capacity as Commanding General and Chief of Engineers of the U.S. Army Corps of Engineers; COL. JASON A. KIRK, in his official capacity as District Commander of the U.S. Army Corps of Engineers; U.S. DEPARTMENT OF THE INTERIOR; RYAN ZINKE, in his official capacity as Secretary of the U.S. Department of Interior; U.S. FISH AND WILDLIFE SERVICE; and JIM KURTH, in his official capacity as Acting Director of U.S. Fish and Wildlife Service, Defendants. _____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 8:17-cv-618-SDM-MAP ORAL ARGUMENT REQUESTED PLAINTIFFS’ DISPOSITIVE MOTION FOR SUMMARY JUDGMENT AND SUPPORTING MEMORANDUM OF LAW Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 1 of 43 PageID 849 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................................ iii TABLE OF ACRONYMS AND ABBREVIATIONS COMMONLY USED IN DOCUMENTS RELATED TO THIS CASE ..................................................................... viii MOTION FOR SUMMARY JUDGMENT............................................................................1 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION ...........................2 STANDARD AND SCOPE OF REVIEW .............................................................................2 ARGUMENT ..........................................................................................................................3 I. Plaintiffs have standing to bring the claims in the Amended Complaint ...................4 II. The Corps is violating the National Environmental Policy Act .................................5 A. The Corps unlawfully deviated from the NEPA process of agency decisionmaking .....................................................................................................6 B. The Corps must issue a site-specific environmental impact statement for the SPE Mine because it will have significant impacts on the human environment ..........................................................................................................8 C. The Corps unlawfully failed to analyze the reasonably foreseeable and significant indirect and cumulative impacts from phosphogypsum stacks .........11 D. The Corps’ purpose and need statement for SPE Mine is unlawfully narrow, disqualifying reasonable alternatives .....................................................14 III. The Corps is violating the Clean Water Act .............................................................16 A. The Corps fails to rebut the presumption that practicable alternatives with fewer impacts exist .....................................................................................16 B. The Corps misapplies the Public Interest Review, predetermining the results ............................................................................................................18 C. The Corps fails to comply with the Compensatory Mitigation Rule ..................19 D. The Corps deprived the public of a hearing on the SPE Mine ............................22 IV. The Corps and Service are violating the Endangered Species Act ...........................23 Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 2 of 43 PageID 850 ii A. The Corps and Service failed to consider the impacts of the mines planned for Bone Valley ..................................................................................24 B. The Service’s ITS unlawfully fails to specify take and provide a meaningful trigger to reinitiate consultation ....................................................27 C. The Corps and Service unlawfully failed to reinitiate consultation .................29 D. The Corps’ reliance on the BO violates the ESA and APA .............................30 CONCLUSION ..................................................................................................................30 Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 3 of 43 PageID 851 iii TABLE OF AUTHORITIES CASES Am. Canoe v. White, 277 F. Supp. 2d 1244 (N.D. Ala. 2003) ................................................................................ 2 Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87 (1983) ...............................................................................................................15 Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 833 F.3d 1274 (11th Cir. 2016) ..............................................................................................6 Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271 (11th Cir. 2015) ............................................................................................. 4 Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984) .............................................................................................................. 4 Citizens for Smart Growth v. Peters, 716 F. Supp. 2d 1215 (S.D. Fla. 2010)................................................................................ 14 Coastal Conservation Ass’n v. Locke, No. 2:09-cv-641-FtM-29SPC, 2011 U.S. Dist. LEXIS 111814 (M.D. Fla. Aug. 16, 2011) .................................................. 6 Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) ............................................................................................. 24 Defs. of Wildlife v. Babbitt, 130 F. Supp. 2d 121 (D.D.C. 2001) .................................................................................... 25 Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242 (11th Cir. 2012) ............................................................................................. 6 Defs. of Wildlife v. Salazar, 877 F. Supp. 2d 1271 (M.D. Fla. 2012) ................................................................................ 6 Defs. of Wildlife v. U.S. Dep’t of the Navy, 733 F.3d 1106 (11th Cir. 2013) ............................................................................................. 6 Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 4 of 43 PageID 852 iv Deltona Corp. v. Alexander, 504 F. Supp. 1280 (M.D. Fla. 1981) ................................................................................... 18 Fla. Clean Water Network v. Grosskruger, 587 F. Supp. 2d 1236 (M.D. Fla. 2008) ........................................................................ 14, 15 Fla. Key Deer v. Brown, 364 F. Supp. 2d 1345, 1355-56 (S.D. Fla. 2005) .......................................................... 26, 27 Fla. Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008) ............................................................................... 24, 25, 30 Fla. Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 401 F. Supp. 2d 1298 (S.D. Fla. 2005).............................................................. 13, 14, 15, 19 Fund for Animals v. Rice, 85 F.3d 535 (11th Cir. 1996) ...................................................................................... 2, 20-21 Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004) ........................................................................................... 16 Haw. Longline Ass’n v. Nat’l Marine Fisheries Serv., 281 F. Supp. 2d 1 (D.D.C. 2003) ........................................................................................ 30 Hill v. Boy, 144 F.3d 1446 (11th Cir. 1998) ......................................................................................... 6, 9 Idaho Conservation League v. U.S. Forest Serv., No. 1:11-cv-00341-EJL, 2012 U.S. Dist. LEXIS 124659 (D. Idaho Aug. 29, 2012) ................................................. 10 Kleppe v. Sierra Club, 427 U.S. 390 (1976) .............................................................................................................. 6 Miccosukee Tribe of Indians v. United States, 566 F.3d 1257 (11th Cir. 2009) ................................................................................ 23, 27-28 Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .......................................................................................................... 3, 14 Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 5 of 43 PageID 853 v Nat. Res. Def. Council v. Nat’l Park Serv., No. 2:16-cv-585-FtM-99CM, 2017 U.S. Dist. LEXIS 61428 (M.D. Fla. Apr. 24, 2017) .................................................. 25 Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005) ............................................................................................... 10 Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469 (D.D.C. 2014) ...................................................................................... 29 Ouachita Watch League v. Jacobs, 463 F.3d 1163 (11th Cir. 2006) ............................................................................................. 4 Pac. Coast Fed’n of Fishermen’s Ass’ns v. Nat’l Marine Fisheries Serv., 265 F.3d 1028 (9th Cir. 2001) ............................................................................................. 26 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .............................................................................................................. 5 S. Fork Band Council of W. Shoshone v. U.S. Dep’t of Interior, 588 F.3d 718 (9th Cir. 2009) ............................................................................................... 10 Sierra Club v. Flowers, 526 F.3d 1353 (11th Cir. 2008) ......................................................................................... 6, 8 Sierra Club v. Marin, 168 F.3d 1 (11th Cir. 1999) ................................................................................................... 8 Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209 (11th Cir. 2002) ......................................................................................... 2, 3 Sierra Club v. Van Antwerp, 362 Fed. Appx. 100 (11th Cir. 2010) ............................................................................ 16, 18 Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254 (S.D. Fla. 2009)................................................................ 8, 14, 17, 18 Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) ............................................................................................................ 23 Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 6 of 43 PageID 854 vi Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152 (10th Cir. 2002) ..................................................................................... 17, 18 Wild Fish Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) ............................................................................................... 28 STATUTES Administrative Procedure Act 5 U.S.C. § 704 ........................................................................................................................... 2 5 U.S.C. § 706(2)(A)................................................................................................................. 2 Endangered Species Act 16 U.S.C. § 1532(19) ........................................................................................................ 23, 27 16 U.S.C. § 1536(a)(2) ................................................................................................ 23, 24, 27 16 U.S.C. § 1536(b) ................................................................................................................ 23 16 U.S.C. § 1536(b)(4)(C)(i) ............................................................................................ 23, 28 Clean Water Act 33 U.S.C. § 1251 ..................................................................................................................... 16 33 U.S.C. § 1251(e) ................................................................................................................ 22 33 U.S.C. § 1311(a) ................................................................................................................ 16 33 U.S.C. § 1344(a) ................................................................................................................ 22 National Environmental Policy Act 42 U.S.C. § 4321 ....................................................................................................................... 8 42 U.S.C. § 4332 ....................................................................................................................... 5 42 U.S.C. § 4332(2)(C) ....................................................................................................... 6, 22 REGULATIONS 33 C.F.R. § 230.14 .................................................................................................................... 6 33 C.F.R. § 320.4(a)(1) ........................................................................................................... 18 33 C.F.R. § 320.4(b)(1) ........................................................................................................... 18 33 C.F.R. § 327.4(b) ............................................................................................................... 22 33 C.F.R. Part 325, App. B § 11 ............................................................................................. 22 33 C.F.R. Part 325, App. B § 7(b)(1) ...................................................................................... 13 Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 7 of 43 PageID 855 vii 33 C.F.R. Part 325, App. B § 7(b)(2) ...................................................................................... 13 33 C.F.R. Part 325, App. B § 7(b)(3) ...................................................................................... 19 40 C.F.R. § 230.10 .................................................................................................................. 16 40 C.F.R. § 230.10(a).............................................................................................................. 16 40 C.F.R. § 230.10(a)(3) ................................................................................................... 16, 18 40 C.F.R. § 230.93(a)(2) ......................................................................................................... 19 40 C.F.R. § 230.93(f)(2) ......................................................................................................... 20 40 C.F.R. § 230.94(e)(3) ......................................................................................................... 20 40 C.F.R. § 1500.1(b) ........................................................................................................... 5, 6 40 C.F.R. § 1500.1(c)................................................................................................................ 5 40 C.F.R. § 1501.2 .................................................................................................................... 5 40 C.F.R. § 1501.4 .................................................................................................................... 6 40 C.F.R. § 1502 ..................................................................................................................... 14 40 C.F.R. § 1502.2(g) ............................................................................................................. 15 40 C.F.R. § 1505.2 .................................................................................................................... 6 40 C.F.R. § 1506.5(a).............................................................................................................. 18 40 C.F.R. § 1506.6 (c)(1) ........................................................................................................ 23 40 C.F.R. § 1508.8(b) ............................................................................................................. 12 40 C.F.R. § 1508.9(a)(1) ........................................................................................................... 6 40 C.F.R. § 1508.9(b) ............................................................................................................. 14 40 C.F.R. § 1508.13 .................................................................................................................. 6 40 C.F.R. § 1508.14 .............................................................................................................. 8, 9 40 C.F.R. § 1508.27(b) ........................................................................................................... 10 40 C.F.R. § 1508.27(b)(1) ....................................................................................................... 10 40 C.F.R. § 1508.27(b)(2) ................................................................................................. 10, 11 40 C.F.R. § 1508.27(b)(3) ....................................................................................................... 10 40 C.F.R. § 1508.27(b)(4) ................................................................................................. 10, 11 40 C.F.R. § 1508.27(b)(5) ................................................................................................. 10, 11 40 C.F.R. § 1508.27(b)(6) ................................................................................................. 10, 11 40 C.F.R. § 1508.27(b)(7) ....................................................................................................... 10 40 C.F.R. § 1508.27(b)(9) ................................................................................................. 10, 11 40 C.F.R. § 1508.28 .................................................................................................................. 6 43 C.F.R. § 46.30 .................................................................................................................... 11 50 C.F.R. § 17.3 ...................................................................................................................... 27 50 C.F.R. § 402.02 ............................................................................................................ 24, 25 50 C.F.R. § 402.14(d) ............................................................................................................. 27 50 C.F.R. § 402.14(g) ....................................................................................................... 23, 24 50 C.F.R. § 402.14(g)(3) ......................................................................................................... 24 Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 8 of 43 PageID 856 viii 50 C.F.R. § 402.14(h) ............................................................................................................. 23 50 C.F.R. § 402.14(h)(2) ......................................................................................................... 27 50 C.F.R. § 402.14(i) .............................................................................................................. 23 50 C.F.R. § 402.14(i)(4).......................................................................................................... 29 50 C.F.R. § 402.14(i)(l)(i) ................................................................................................. 27, 28 50 C.F.R. § 402.16(b) ....................................................................................................... 29, 30 50 C.F.R. § 402.16(c)........................................................................................................ 29, 30 RULES Fed. R. Civ. P. 56(a) ................................................................................................................. 3 Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 9 of 43 PageID 857 ix TABLE OF ACRONYMS AND ABBREVIATIONS COMMONLY USED IN DOCUMENTS RELATED TO THIS CASE 3PR – People for Protecting Peace River AEIS – Areawide Environmental Impact Statement APA – Administrative Procedure Act BO – Biological Opinion Center – Center for Biological Diversity CMR – Compensatory Mitigation Rule Corps – U.S. Army Corps of Engineers DAEIS - Draft Areawide Environmental Impact Statement EA – Environmental Assessment EIS – Environmental Impact Statement EPA – Environmental Protection Agency ESA – Endangered Species Act FAEIS – Final Areawide Environmental Impact Statement FONSI – Finding of No Significant Impact ITS – Incidental Take Statement LEDPA – Least Environmentally Damaging Practicable Alternative MMT – million short tons MMTPY – million short tons of phosphate rock per year NEPA – National Environmental Policy Act ROD – Record of Decision Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 10 of 43 PageID 858 x Service – U.S. Fish and Wildlife Service SPBP – South Pasture Beneficiation Plant SPE Mine – South Pasture Extension Mine Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 11 of 43 PageID 859 1 MOTION FOR SUMMARY JUDGMENT Plaintiffs move for summary judgment on all Counts in their First Amended Complaint, ECF No. 52, regarding the U.S. Army Corps of Engineers’ Permit Number SAJ- 1993-01395, 1 also known as the South Pasture Extension Mine (SPE Mine). Plaintiffs’ Memorandum of Law supporting this Motion demonstrates that Defendants U.S. Army Corps of Engineers; Lt. Gen. Todd T. Semonite, in his official capacity as Commanding General and Chief of Engineers for the Corps; and Col. Jason A. Kirk, in his official capacity as District Commander for the Jacksonville District of the Corps (collectively, Corps) issued the SPE Mine permit in violation of the Clean Water Act, National Environmental Policy Act (NEPA), and Endangered Species Act (ESA), and in a manner that is arbitrary, capricious, and contrary to the Administrative Procedure Act (APA). The Corps also issued an Areawide Environmental Impact Statement (AEIS), which purports to analyze the SPE Mine and other mines in the area, in violation of NEPA, the ESA, and the APA. Defendants U.S. Fish and Wildlife Service; Department of the Interior; Ryan Zinke, in his official capacity as Secretary of the Interior; and Jim Kurth, in his official capacity as Acting Director of the Service (collectively, Service) have also failed to protect imperiled species and their habitats as they relate to the AEIS and the SPE Mine, in violation of the ESA and APA. For the reasons set forth in the Memorandum below, Plaintiffs respectfully ask the Court to grant this motion, enter summary judgment for Plaintiffs on all counts, and enjoin Defendants from authorizing any activities in reliance on SAJ-1993-01395. Plaintiffs respectfully request a hearing on this motion and request thirty minutes. 1 This permit, including its application file, is or has been referred to as SAJ-1993-01395, SAJ-1993-01395 (SP- JPF), and SAJ-1993-01395 (IP-JPF), hereinafter, SAJ-1993-01395. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 12 of 43 PageID 860 2 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION This case concerns the fate of west-central Florida, a region known for agriculture, cattle grazing, and recreational opportunities, but now threatened with tens of thousands of acres of phosphate mining that will violently transform the environment and destabilize rural communities. Plaintiffs, Center for Biological Diversity (Center), ManaSota-88, People for Protecting Peace River (3PR), and Suncoast Waterkeeper, and their members, are concerned about the future of their local communities and the environment, and are adversely affected by the Corps’ and Service’s actions, which set into motion an unlawful process that deprives the public agency decisionmakers of meaningful access to information. This highly controversial process produced a permit to gut thousands of acres of wetlands, streams, and productive crop land and pastures. Worse yet, it represents the first in a succession of related mine approvals, all of which intend to rely on the same fundamentally flawed process. STANDARD AND SCOPE OF REVIEW The APA provides for judicial review of agency actions, including decisions under NEPA, the Clean Water Act, and the ESA. 5 U.S.C. § 704; Fund for Animals v. Rice, 85 F.3d 535, 541 (11th Cir. 1996). A court must “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1216 (11th Cir. 2002); Am. Canoe v. White, 277 F. Supp. 2d 1244, 1258 (N.D. Ala. 2003). Agency action is arbitrary and capricious if the agency: relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 13 of 43 PageID 861 3 Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). A reviewing court considers “the entire administrative record.” Sierra Club v. Army Corps, 295 F.3d at 1216. Summary judgment shall be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). ARGUMENT This morass began in 2012, when the Corps published a Draft Areawide Environmental Impact Statement for Phosphate Mining Affecting Waters of the United States in the Central Florida Phosphate District (DAEIS), which purported to assess the environmental impacts of permitting four phosphate mines—the SPE, Desoto, Ona, and Wingate mines—to disfigure more than 51,000 acres of wetlands, watersheds, and habitat in Hardee, Hillsborough, Manatee, Polk and DeSoto counties. AR_0179807; AR_0178392- 0179454. In 2013 the Corps published its Final Areawide Environmental Impact Statement on Phosphate Mining in the Central Florida Phosphate District (FAEIS), deferring site-specific assessments of the mines. AR_0253146; AR_0250075-0250124; AR_0250285-0253068. On June 16, 2016, the Corps released a Supplemental Environmental Assessment (EA). 2 AR_0287129. The EA was the public’s first opportunity to review the site-specific impacts of the SPE Mine, but rather than provide that, the EA largely referred the public back to the FAEIS. AR_0275348-0275394. On November 15, 2016, the Corps issued a Clean Water Act Section 404 permit for dredging and filling activities at the SPE Mine, AR_0289857-0292458, extending the existing South Pasture Mine and giving Intervenor 2 This included a draft public interest review, and draft Clean Water Act 404(b)(1) Guidelines analysis for the SPE Mine. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 14 of 43 PageID 862 4 Mosaic 20 years to mine 7,513 acres in Hardee County. AR_0289830. In issuing this permit, the Corps denied multiple requests for public hearing. See, e.g., AR_0289807; AR_0287128. Our nation’s laws—NEPA, the Clean Water Act, the ESA, and the APA—require the government to assess, stop or minimize, and mitigate the harmful effects of its actions on the human environment; however, these laws only work if they are followed. This action argues the government did not maintain the integrity of these laws in granting a controversial permit that will fundamentally change thousands of acres of Florida’s wetlands, streams, and pastures. Relief from this Court is necessary to prevent further degradation of rural communities and shared environmental resources that are the heart of west-central Florida. I. Plaintiffs have standing to bring the claims in the Amended Complaint Plaintiffs are non-profit organizations and bring their claims on their own behalf and on behalf of their adversely affected members. Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006); see also Mader Decl.; Mele Decl.; Compton Decl.; and Burd Decl. Plaintiffs have Article III Constitutional standing to bring this action, and additionally meet the non-constitutional “zone of interests” test. Ouachita Watch., 463 F.3d at 1173; Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1282 (11th Cir. 2015); Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984). Plaintiffs’ members live, work, and recreate in the areas affected by the phosphate mines in the FAEIS. 3 For example, 3PR member Henry Kuhlman lives just north of SPE Mine and enjoys flying his plane, tending his cattle, riding his off-road vehicle, and fishing in the area. Kuhlman Decl. at ¶ 6. He is concerned additional mining will degrade the region’s 3 See also Richardson Decl.; Simpson Decl.; Dang Decl.; B. Armstrong Decl.; Hollenhorst Decl.; Ripberger Decl.; and Smith Decl. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 15 of 43 PageID 863 5 ability to produce cattle, crops, and clean water. Id. at ¶ 13-17. 3PR and Center members Brooks and Nancy Armstrong are 10 miles from SPE Mine, five miles from Ona Mine, and are concerned about the effects of encroaching phosphate mining operations on their ability to enjoy wildlife on their property, including eastern indigo snakes and gopher tortoises. N. Armstrong Decl. at ¶ 7. 3PR members Hugh and Amy Richardson live just south of SPE Mine, directly across the street from Ona Mine, and are concerned about the impacts to hydrology, their wells, and wildlife on their property. Richardson Decl. at ¶ 5, 14. These are just a few of the many harms and injuries to Plaintiffs. II. The Corps is violating the National Environmental Policy Act Congress enacted NEPA to integrate into the normal business practices of the federal government procedures for an agency to meaningfully consider environmental and public interest factors prior to taking action. 40 C.F.R. § 1501.2; 42 U.S.C. § 4332; Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348-49 (1989). NEPA requires informed decisionmaking and emphasizes public engagement in governmental decisions that may affect the human environment. Robertson, 490 U.S. at 349-50; 40 C.F.R. § 1500.1(b)-(c). Here, rather than following the commands of NEPA, the Corps clumsily mixed an areawide environmental analysis with its site-specific NEPA obligations for the SPE Mine. In doing so, it failed to analyze many impacts of the SPE Mine and unlawfully discounted the impacts it did identify. These failures not only violate the procedural requirements of NEPA but also undermine the Corps’ duty to assess and disclose the significant effects of phosphate mining on the human environment, are arbitrary, and violate NEPA and the APA. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 16 of 43 PageID 864 6 A. The Corps unlawfully deviated from the NEPA process of agency decisionmaking NEPA sets forth a predictable process for agency decisionmaking. 40 C.F.R. § 1500.1(b); Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976); Sierra Club v. Flowers, 526 F.3d 1353, 1361 (11th Cir. 2008). An agency must prepare an environmental impact statement (EIS) for any action that significantly affects the quality of the human environment. 42 U.S.C. § 4332(2)(C); see also 40 C.F.R. § 1501.4; Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 833 F.3d 1274, 1278 (11th Cir. 2016). The agency concludes the EIS process by publishing a Record of Decision (ROD). See 40 C.F.R. § 1505.2; 33 C.F.R. § 230.14; Defs. of Wildlife v. U.S. Dep’t of the Navy, 733 F.3d 1106, 1109-10 (11th Cir. 2013). An agency may prepare an environmental assessment (EA) to determine whether to prepare an EIS. 40 C.F.R. § 1508.9(a)(1); Coastal Conservation Ass’n v. Locke, No. 2:09-cv-641-FtM-29SPC, 2011 U.S. Dist. LEXIS 111814, *27 (M.D. Fla. Aug. 16, 2011). The agency concludes an EA with a decision to do an EIS, or it publishes a finding of no significant impact (FONSI). See also Hill v. Boy, 144 F.3d 1446, 1450 (11th Cir. 1998); 40 C.F.R. § 1508.13. Where an agency addresses an areawide issue, it may utilize a tiered environmental analysis in which it prepares a general EIS and tiers from it a subsequent analysis focusing on site-specific projects. 40 C.F.R. § 1508.28. If an agency chooses this process, it can: (1) tier to the areawide EIS to produce a subsequent, site-specific EIS and ROD; (2) tier to the areawide EIS to produce an EA and FONSI; or (3) prepare a supplemental EIS. Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1251-53 (11th Cir. 2012); Defs. of Wildlife v. Salazar, 877 F. Supp. 2d 1271, 1297 (M.D. Fla. 2012). There are no exceptions Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 17 of 43 PageID 865 7 to this process for areawide EISs. In fact, the last time the government undertook a comprehensive review of phosphate mining in Florida, the Environmental Protection Agency (EPA) 4 had jurisdiction over the phosphate industry and produced an areawide EIS, finding: [T]he purpose of an areawide or generic EIS is to examine areawide and cumulative short and long term effects of the continued expansion of . . . the phosphate industry . . . [and] establishes a basis for initiating site specific EIS’s for new source mining and chemical processing operations. Each site specific EIS will develop a mining and reclamation plan based on Areawide EIS recommendations, and examine effects of the site specific mining and reclamation plan. AR_0001420. Yet the Corps did not follow these procedural steps. In contravention of this predictable process, the Corps approved the SPE Mine before issuing a ROD for the FAEIS; prepared a site-specific ROD before preparing a site-specific EIS; and otherwise completed its environmental review of the SPE Mine without conforming to the procedural processes set out by NEPA. This is contrary to NEPA, its regulations, and the agency’s own assurances that it would issue an ROD on the FAEIS. AR_0178450; AR_0080148; AR_0081152; AR_0081803; AR_0081820-0081821; AR_0094047; AR_0096281. The distinction is not mere semantics. Such procedural improvisation frustrates the goals of NEPA, undermines the validity of the ROD, and erodes agency credibility and the public’s trust. AR_0265887 (agencies should avoid the perception of a programmatic NEPA review that establishes a “shell game” that undermines “agency credibility and public trust”). 5 As a result, the Court “must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself.” Sierra Club v. 4 The EPA is a cooperating agency in the present matter. 5 See, e.g., NEPA Task Force, Report to the Council on Environmental Quality, Modernizing NEPA Implementation, 39 (2003), https://ceq.doe.gov/docs/ceq-publications/report/finalreport.pdf, cited at AR_0265887 in footnote 3. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 18 of 43 PageID 866 8 Marin, 168 F.3d 1, 4 (11th Cir. 1999); see also Flowers, 526 F.3d at 1368 (“an agency’s failure to follow its own regulations and procedures is arbitrary and capricious.”) (internal citation omitted); Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254, 1259 (S.D. Fla. 2009) (Van Antwerp I), aff’d by 362 Fed. Appx. 100 (11th Cir. 2010) (Van Antwerp II). In failing to conclude the FAEIS with an ROD and EA with a FONSI or EIS, the Corps violated NEPA. B. The Corps must issue a site-specific environmental impact statement for the SPE Mine because it will have significant impacts on the human environment NEPA is intended to promote efforts to prevent or eliminate damage to the human environment. 42 U.S.C. § 4321. As it relates to the SPE Mine, however, the Corps’ strained and piecemeal NEPA analysis falls short of adequately identifying and taking a “hard look” at all of the significant impacts of its action. 40 C.F.R. § 1508.14. The FAEIS does not provide the level of site-specific detail that NEPA demands, and the SPE Mine EA does not adequately supplement that analysis. Rather than incorporate the FAEIS by reference and then build upon that baseline in the SPE Mine EA, the EA merely incorporates the inadequate findings from the FAEIS and then omits any further site-specific analysis. As an example, for impacts to the physical substrate; water circulation, fluctuation, and salinity; suspended particulate/turbidity; contaminant availability; aquatic ecosystem; proposed disposal site; and cumulative effects, the EA states that “Chapter 4 of the FEIS describes the [ ] effects of the South Pasture Extension project.” AR_0275372. However, the FAEIS does not analyze impacts on the resources other than to acknowledge the effects would be Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 19 of 43 PageID 867 9 moderate without mitigation. 6 AR_0250645. Further, the Corps bases its surface water impacts analysis on a cursory review of the existing South Pasture Mine’s well monitoring to find that the SPE Mine “would have a minor to moderate degree of effect.” AR_0250712. It states that the SPE Mine would have “indirect effects on the aquatic biota,” but doesn’t state what they are, instead speculating that “as the project moves through the mitigation sequencing process . . . there will be a potential reduction in the linear footage of stream impacts and a necessary offset of any remaining unavoidable impacts with compensatory mitigation” and therefore, it “would have at most a moderate effect on aquatic biological communities, which would not be significant.” AR_0250717. 7 The Corps failed to adequately consider and analyze all of the significant impacts of its action on the human environment, an analysis that should have been conducted in a site- specific EIS. 40 C.F.R. § 1508.14. The Eleventh Circuit has adopted a four-part test to determine whether an agency’s decision not to prepare an EIS is arbitrary and capricious: (1) the agency must accurately identify the relevant environmental concerns; (2) the agency must then take a “hard look” at those concerns when preparing the EA; (3) the agency must make a convincing case for a FONSI; and (4) if the agency does find an impact of true significance, preparation of an EIS can be avoided only if the agency finds that changes or safeguards in the project sufficiently reduce the impact to a minimum. Hill, 144 F.3d at 1450. In evaluating the severity of an impact of a proposed action, agencies must consider 6 The FAEIS referred to the fact that the Corps did not conduct an analysis on the effect of mining of 409 acres within the Payne Creek subwatershed, AR_0250639, and only found that the SPE Mine would reduce Horse Creek’s flow by two to three percent. AR_0250641-0250642. 7 See AR_0250729-0250730; AR_0250748-0250749 for similar non-evaluation of site-specific impacts to wetlands and habitat, respectively. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 20 of 43 PageID 868 10 factors like adverse and beneficial impacts; impacts to public health or safety; the unique characteristics of the area; the degree to which the effects are likely to be highly controversial, are highly uncertain, or involve unique or unknown risks; the precedential nature of the action; whether the action, along with other related actions, will cause a cumulatively significant impact on the environment; and impacts to endangered or threatened species and their habitat. 40 C.F.R. § 1508.27(b)(1)-(7), (9). Any “one of these factors may be sufficient to require preparation of an EIS in appropriate circumstances.” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 865 (9th Cir. 2005). First, the SPE Mine will cause impacts to “[u]nique characteristics of the geographic area,” including “wetlands” and “ecologically critical areas,” such as riparian forests, species’ habitat, and karst features that provide valuable human services like water filtration and flood control. 8 40 C.F.R. § 1508.27(b)(3); AR_0287358-0287359; AR_0287133; AR_0287147. For impacts to wetlands and streams, the FAEIS defers its analysis to its site- specific NEPA review. AR_0250730. In the site-specific review, however, the EA concludes the impacts will not be significant because the FAEIS “described the predicted effects on wetlands, and states that with mitigation, [SPE] would have no impact to a minor impact on wetlands.” AR_0287146; see also AR_0250730. Such circular analysis violates NEPA. Idaho Conservation League v. U.S. Forest Serv., No. 1:11-cv-00341-EJL, 2012 U.S. Dist. LEXIS 124659, *29 (D. Idaho Aug. 29, 2012); S. Fork Band Council of W. Shoshone v. U.S. Dep’t of Interior, 588 F.3d 718, 726 (9th Cir. 2009). 8 The karst features that underlie the mine sites have been specifically identified as unique physical features, and, because of that, “the character of the limestone underlying proposed temporary slime-storage areas should be investigated on a site-specific basis to assess the precise potential for impact.” AR_0001424. Yet, a detailed analysis of these significant impacts never took place in the FAEIS or EA. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 21 of 43 PageID 869 11 Second, as shown by thousands of public comments, the effects of mining are “highly controversial.” 40 C.F.R. § 1508.27(b)(4); 43 C.F.R. § 46.30; AR_0287184-0287281; AR_0287282-0287408; AR_0251016-0252473. Third, because the SPE Mine “may establish a precedent for future actions with significant effects,” including seven other planned mines, it should have been analyzed in its own site-specific EIS. 40 C.F.R. § 1508.27(b)(6); AR_0287359; AR_0250394. Fourth, the effects of phosphate mining on public health and safety underscore the degree to which the possible harm to the human environment is highly uncertain or involves unique or unknown risks. 40 C.F.R. § 1508.27(b)(2), (5); AR_0287358; AR_0287321; AR_0127993. Fifth, the SPE Mine may affect endangered or threatened species. 40 C.F.R. § 1508.27(b)(9); AR_0287359-0287374; FWS 022161-022203. Throughout the NEPA process, the applicant repeatedly requested that the Corps conduct a project-specific EIS for the SPE Mine, AR_0081834-0081835 AR_0083839- 0083841, because it recognized an EIS was “the most appropriate and prudent course of action for the site-specific needs of the SPE project in order to ensure NEPA compliance is comprehensively addressed.” AR_0081834. Neither the FAEIS nor the EA analyzed the particulars regarding significant impacts of the SPE Mine on the human environment, and therefore the Corps must produce a site-specific EIS for the SPE Mine. C. The Corps unlawfully failed to analyze the reasonably foreseeable and significant indirect and cumulative impacts from phosphogypsum stacks The Corps identified the “need” for the action as “to continue supplying [Mosaic’s] customers in the United States and over 40 countries with phosphate fertilizers and feed supplements for another 20 years.” AR_0287124. Notably, the Corps explicitly excluded any alternative to phosphate mining that would avoid the use of conventional fertilizer. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 22 of 43 PageID 870 12 AR_0250391. Despite receiving numerous requests—including from the EPA and Sarasota County, AR_0175523; AR_0175525; AR_0175527-0175595; AR_0225202-0225025; AR_0234723-0234727; AR_0251108—neither the FAEIS nor the EA analyzes the reasonably foreseeable significant indirect and cumulative impacts of fertilizer production on the human environment and public health. 9 Such failure is in flagrant violation of NEPA and the APA. Phosphogypsum stacks are the reasonably foreseeable result of processing mined phosphate ore into fertilizer, and the stacks and their expansion are a direct result of phosphate mining, including the SPE Mine. 10 AR_0250315; see also 40 C.F.R. § 1508.8(b). In its capacity as a cooperating agency, the EPA stated that it “has long considered phosphogypsum to be a part of the mining waste stream and an associated potential environmental impact.” AR_0175527. Yet, the Corps ignored this reality, decided that fertilizer plants and phosphogypsum stacks have “independent utility” from phosphate mines, and that it did not need to analyze their direct or indirect impacts. AR_0287128. The Corps defines a project as having independent utility “if it would be constructed absent the construction of other projects in the project area. Portions of a multi-phase project that depend upon other phases of the project do not have independent utility.” AR_0227245. Where an activity requiring a permit is “merely one component of a larger project,” the scope of the environmental review should “address the impacts of the specific activity requiring the 9 Phosphogypsum is created when mined phosphate ore is treated with sulfuric acid to produce phosphoric acid - a main ingredient of synthetic fertilizer and the “need” for this project. AR_0250314-0250316. Phosphogypsum is also radioactive, a detail the Corps omits from the public-facing NEPA documents. AR_0001427-0001429. Phosphogypsum is stored in mountainous open-air heaps known as phosphogypsum stacks which are generally created on unused or mined-out land on the processing site. AR_0250315. These stacks have led to spills and have impacted water quality in west-central Florida. AR_0250492. 10 For every one ton of phosphoric acid created for fertilizer, Intervenor Mosaic produces five tons of radioactive phosphogypsum. AR_0225205; AR_0250315. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 23 of 43 PageID 871 13 permit and those portions of the entire project over which the district engineer has sufficient control and responsibility.” 33 C.F.R. Part 325, App. B § 7(b)(1). The district engineer has control and responsibility “where the environmental consequences of the larger project are essentially products of the Corps’ permitted action.” Id. § 7(b)(2). In determining that fertilizer plants have “independent utility,” the Corps appears to have relied in-part on Mosaic’s representation that the fertilizer plants would continue operations, regardless of whether the mines were permitted, by purchasing rock from other sources. AR_0250315-0250316. However, the record is replete with statements that directly refute this rationale. It is beyond dispute that these operations are fully integrated, from mining to fertilizer production. AR_0081961-0081963; AR_0275052 (“We are also vertically integrated to [ ] supply one of our key inputs, phosphate rock, to our phosphate production facilities). The Corps’ own findings support the interdependence of mining and fertilizer production, including by explicitly rejecting any alternative that relies on importing phosphate rock to feed the fertilizer plants, AR_0250391, and by basing its alternatives analysis on the underlying prerequisite of local mining and processing, AR_0250391-93 (rejecting import/transport alternatives); AR_0287130 (establishing all alternatives must be within 10 miles of the South Pasture Mine beneficiation plant); AR_0081965 (“Hardee mine is the sole rock supply for CF’s phosphate fertilizer production.”)(emphasis in original). In Florida Wildlife Federation v. U.S. Army Corps of Engineers, the court found that “[r]epresentations by the applicant alone, who clearly has an interest in obtaining the permit and whose theory of ‘independent utility’ . . . cannot be sufficient to establish a project’s independent utility.” 401 F. Supp. 2d 1298, 1323 (S.D. Fla. 2005). The court further reasoned Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 24 of 43 PageID 872 14 that “the concept of ‘independent utility’ should not be manipulated to avoid significance or ‘troublesome’ environmental issues.” Id. at 1315. There, as here, the Corps unlawfully based its “independent utility” determination on the representations of the applicant and in doing so, allowed a piecemeal analysis that improperly excludes the evaluation of the effects of the action. See id. at 1321-22. The Corps maintains it had no obligation to evaluate the indirect effects of fertilizer plants or phosphogypsum stacks but that it did consider their cumulative impacts, AR_0250602; however, this analysis is not reflected anywhere in the decision documents or administrative record. AR_0250821-0250838; AR_0287128. Agency action must be set aside if the agency fails to consider an important aspect of the problem. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. In failing to analyze fertilizer plants and stacks as indirect or cumulative impacts, neither the FAEIS nor the EA passes the NEPA hard look test. D. The Corps’ purpose and need statement for SPE Mine is unlawfully narrow, disqualifying reasonable alternatives The purpose and need statement for the proposed action, 40 C.F.R. §§ 1502, 1508.9(b), refines the goals of the action and forms the foundation for identifying the range of reasonable alternatives. Van Antwerp I, 709 F. Supp. 2d at 1260. Defining a project’s purpose and need is “a critical first step to the Corps’ proper evaluation of practicable alternatives.” Fla. Clean Water Network v. Grosskruger, 587 F. Supp. 2d 1236, 1243 (M.D. Fla. 2008). Accordingly, “[t]he purpose and need [in a NEPA review] should be written to avoid eliminating reasonable alternatives.” AR_0265901-0265902. Agencies “may not define the objectives of an action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency’s power would accomplish the goals Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 25 of 43 PageID 873 15 of the agency’s action,” making the environmental review a “foreordained formality.” Citizens for Smart Growth v. Peters, 716 F. Supp. 2d 1215, 1223 (S.D. Fla. 2010); see also 40 C.F.R. § 1502.2(g). The purpose and need statements here fail to achieve this standard. The SPE Mine EA identifies the extraction of 3.37 million short tons of phosphate rock per year (MMTPY) for ten years, or a total of 33.7 million short tons (MMT) of phosphate over the life of the mine as the project need. AR_0287125. 11 In defining the need so narrowly, alternatives that did not guarantee the extraction of that exact amount of phosphate were rejected. The applicant’s “Preferred Plus Additional Avoidance and Maximum Framework Avoidance” alternative, AR_0287141-0287142, which is less environmentally damaging and meets the purpose of mining on the site was rejected because it would produce 5 percent less phosphate than the proposed project. Id. The Corps similarly dismissed the “Maximum Framework Avoidance” alternative. AR_0287142-0287143. 12 The Court must set aside the Corps’ action when it circumvents NEPA’s obligation to “adequately consider[ ] and disclose[ ] the environmental impact of its actions.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, 462 U.S. 87, 98 (1983); Fla. Clean Water, 587 F. Supp. at 1243. By restricting the purpose and need statements, the Corps unreasonably excluded reasonable alternatives, AR_0250388; AR_0250391, and unlawfully predetermined the outcome of its decision, in violation of NEPA. Fla. Wildlife Fed’n, 401 F. Supp. 2d at 1329. 11 This amount was based on an amount based historic operations at the adjacent South Pasture Mine. 12 The Corps also dismissed the “no action alternative,” an alternative that is mandated by NEPA and would have prevented mining in wetlands, because it would only allow the recovery of approximately seven percent of the total commercially mineable reserve on the SPE Mine. AR_0287136; AR_0287126-0287127. It also stated the Ona Mine and Wingate East Mine alternatives were not practicable because they are not equivalent to the SPE Mine’s design and will not support the overall project purpose due to Mosaic’s “mining development sequence.” AR_0287133-0287134. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 26 of 43 PageID 874 16 III. The Corps is violating the Clean Water Act Congress enacted the Clean Water Act to restore and maintain the “chemical, physical and biological integrity” of waters of the United States, 33 U.S.C. § 1251, and to attain that goal, prohibits the discharge of pollutants into U.S. waters without a permit. Id. § 1311(a). The Corps may not issue a permit to mine if: (a) there exists an environmentally preferable alternative; (b) the aquatic ecosystem would be significantly degraded; (c) impact minimization and mitigation are insufficient; or (d) an endangered species would be jeopardized. 40 C.F.R. § 230.10. Here, the Corps’ analysis fails on all counts. A. The Corps fails to rebut the presumption that practicable alternatives with fewer impacts exist The Corps is prohibited from issuing a permit “if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem . . . .” Id. § 230.10(a). This is known as the “least environmentally damaging practicable alternative” (LEDPA), and the Clean Water Act mandates its selection. Id. When an activity is not water dependent, 13 the Corps must presume that less environmentally damaging alternatives are available unless the presumption is rebutted by “clearly demonstrating” a practicable alternative is not available. Id. § 230.10(a)(3); Van Antwerp II, 362 Fed. Appx. at 106. This means the applicant must provide “detailed, clear, and convincing information proving that an alternative with less adverse impact is impracticable.” Id. (quoting Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1269 (10th Cir. 2004)). The Corps is barred from “approving environmentally harmful activities in 13 An activity is “water dependent” only if it requires access or proximity to a wetland in order to fulfill its basic purpose. See 40 C.F.R. § 230.10(a)(3). The activity here is not water dependent. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 27 of 43 PageID 875 17 wetlands if those activities might otherwise be relocated to upland locations.” Van Antwerp I, 709 F. Supp. 2d at 1254. As with its NEPA analysis, the Corps summarily rejected any alternative that does not meet SPE Mine’s “project specific-need” of 3.37 MMT per year, or 33.7 MMT over 10 years, including alternatives that would otherwise be the LEDPA. AR_0287125; AR_0287136-0287142. Intervenor Mosaic insisted that the Corps accept its project purpose, claiming that Mosaic’s investment in the South Pasture Beneficiation Plant (SPBP) demonstrated a “fundamental need” to mine all ore reserves within pumping distance of the plant. AR_0263675. In accepting this premise, the Corps rejected any alternatives that did not involve mining in wetlands, claiming that a “No Action” or “Uplands Only” alternative does not meet Mosaic’s “legitimate project objectives.” AR_0263686. This “business as usual” approach to mining on wetlands ignores the Corps’ LEDPA obligations. See Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1188-89 (10th Cir. 2002) (holding “[t]he CWA test is not [ ] whether features of a proposal would make a more desirable project. Rather the Applicant and the [Corps] are obligated to determine the feasibility of the least environmentally damaging alternatives that serve the basic project purpose.”). Further, the applicant insisted that SPE Mine’s “project purpose” be narrowly defined to only include extending the life of the South Pasture Mine and SPBP. AR_0254915. As a result, any alternative sites outside of the pumping distance of the SPBP were rejected. 14 The Corps’ exclusion of alternatives outside of a 10-mile radius predetermined the results of the LEDPA analysis and precluded analysis of alternatives involving importing phosphate rock. 14 The Corps likewise rejected alternatives that fell outside Mosaic’s predetermined “mining sequence.”AR_0287133. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 28 of 43 PageID 876 18 AR_0226473; AR_0250392; AR_0251109; AR_0250391; AR_0250315. The Corps compounded its error by appearing to rely exclusively upon information submitted by Intervenor Mosaic, even though the Corps has a duty to independently verify such information. See Van Antwerp II, 362 Fed. Appx. at 106 (citing 40 C.F.R. § 1506.5(a)). In Van Antwerp I, the Court set aside the Corps’ permit where it failed to (a) investigate claims by the applicant regarding the practicability of mining limestone in other locations; and (b) identify with specificity any potential replacement sources of limestone. 709 F. Supp. 2d at 1265. Here, the Corps’ failures are even more severe because neither Mosaic nor the Corps prepared a study on the feasibility of using phosphate from outside of Bone Valley, nor did the Corps independently evaluate any studies or analyses. See also Utahns, 305 F.3d at 1187. Rather, in doing nothing more than acquiesce to the “business as usual” phosphate mining and wetland destruction and failing to conduct a defensible analysis, the Corps fails to overcome the presumption that there is a LEDPA. 40 C.F.R. § 230.10(a)(3). B. The Corps misapplies the Public Interest Review, predetermining the results The Corps must conduct a “Public Interest Review” which requires the Corps to (1) evaluate the probable and cumulative impacts of the proposed activity and its intended use on the public interest; and (2) balance the benefits which reasonably may be expected to accrue from the proposal against its reasonably foreseeable detriments. 33 C.F.R. § 320.4(a)(1). Because “[m]ost wetlands constitute a productive and valuable public resource,” the guiding criterion in the Public Interest Review is that their “unnecessary alteration or destruction” should be “discouraged as contrary to the public interest.” Id. § 320.4(b)(1); see also Deltona Corp. v. Alexander, 504 F. Supp. 1280 (M.D. Fla. 1981). To avoid an honest public interest Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 29 of 43 PageID 877 19 review, the Corps varied the scope of the SPE Mine which manipulated the results of the review. Specifically, the Corps abused its discretion by using a broader scope of analysis for the positive impacts of the SPE Mine—the benefits of fertilizer—while using a narrower scope of analysis for the negative impacts—omitting the impacts of actually producing fertilizer. AR_0287152-0287153; AR_0250785. Such “stacking of the deck” is categorically prohibited. See, e.g., Fla. Wildlife Fed’n, 401 F. Supp. 2d at 1327. “In all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal.” 33 C.F.R. Part 325, App. B § 7(b)(3). C. The Corps fails to comply with the Compensatory Mitigation Rule The Compensatory Mitigation Rule (CMR) sets forth a “mitigation sequence,” which means that “anyone wishing to obtain a permit to impact a wetland or other aquatic resource must first avoid and minimize impacts, and then compensate for unavoidable impacts.” AR_0124293. Therefore, prior to considering mitigation, the Corps must require maximum avoidance through the LEDPA. Fla. Wildlife Fed’n, 401 F. Supp. 2d at 1308. The Corps improperly prioritized wetlands establishment over restoration; failed to account for the uncertainties inherent in reclamation, including the industry’s past failure to comply with its mitigation obligations; and failed to account for the mine’s temporal impacts on wetlands. In approving a mitigation plan, the Corps is required to prioritize wetlands “restoration” over wetlands “establishment” because restoration has a greater likelihood of success and reduces impacts to ecologically important uplands. 40 C.F.R. § 230.93(a)(2). Moreover, compensatory mitigation for streams should be provided through “rehabilitation, enhancement, or preservation since there is greater certainty that these methods of Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 30 of 43 PageID 878 20 compensation will successfully offset permitted impacts,” Id. § 230.94(e)(3), and compensatory mitigation should be completed prior to proposed impacts to waters. The Corps must follow the CMR’s “no net loss” standard, which requires a mitigation ratio greater than one-to-one to account for: (1) the method of compensatory mitigation; (2) the likelihood of success; (3) temporal losses of aquatic resource functions; and (4) the difficulty of restoring or establishing the desired aquatic resource type and functions. Id. § 230.93(f)(2). It also requires the Corps to “determine the appropriate time interval for distinguishing between temporary and permanent impacts” given the risk that “temporary impacts may result in permanent changes to, or losses of, specific functions.” AR_0054628. Despite these mandates, the mitigation plan calls for 12 times more wetland establishment than restoration (1,568.7 acres of establishment and 122.7 acres of restoration), and 10 times more stream establishment than stream restoration (43,838 linear feet of stream channel establishment and only 4,204 linear feet of stream channel restoration). AR_0287122. The Corps did not even require a one-to-one ratio of mitigation through wetland preservation, conceding that the SPE Mine will impact 1,198.17 acres of wetlands, AR_0287121, but only requiring the preservation of 400.4 acres of wetlands onsite and 434.5 acres of wetlands offsite, for a total of 834.9 acres. Even when factoring in restoration (122.7 acres) and preservation (834.9 acres), AR_0287122, the Corps still falls short of requiring a one-to-one ratio. AR_0287122. And even when factoring in the disfavored “establishment,” the mitigation ratio is barely two-to-one. 15 In contrast, in Fund for Animals v. Rice, the Corps required, and the Court upheld, the preservation, restoration, or replacement of 332 acres of 15 2,526.3 acres of total mitigation (1,568.7 acres of establishment, 834.9 acres of preservation, and 122.7 acres of restoration) compared to 1,198.17 acres of wetland impacts is roughly a two-to-one ratio. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 31 of 43 PageID 879 21 wetlands to mitigate impacts to 74 acres of “isolated” wetlands, a mitigation ratio of 4.5 to 1, and required the preservation of 2,970 acres of other lands to compensate for non-wetland impacts of the 895-acre project, a ratio of 3 to 1. 85 F.3d at 544. The CMR requires avoidance and minimization prior to mitigation because “there are still large gaps in the science of restoration ecology.” AR_0124293. Numerous commenters highlighted the uncertainties and risks associated with reclamation. The Florida Association of Mitigation Bankers observed that technological advances have not addressed problems with predicting post-reclamation hydrology, AR_0224048, and that the “risk of unsuccessful mitigation on mined sites is understated . . . and [ ] should reflect the issues that have plagued the industry’s post-reclamation (on-site) mitigation in the past, rather than optimistic speculation about the ability of new technology to resolve these issues.” Id. The EPA also voiced concerns about the “creation” of herbaceous and forested wetlands, which it stated may result in unacceptable adverse impacts to waters of the United States over a 20-year duration. AR_0262215. The Corps itself conceded that “it is generally accepted that more research is needed to better understand how constructed wetlands compare to natural undisturbed wetlands,” AR_0250930, and that “more research is needed to better understand how constructed streams compare to natural undisturbed streams.” 16 AR_0148809. The Corps also failed to take into account the applicant’s record of non-compliance with its existing mitigation at the adjacent South Pasture Mine. The Corps found that the applicant inappropriately removed 1,298 acres of compensatory wetlands from that mitigation plan and that 127 acres of “enhanced” wetlands did not meet required 16 The FAEIS omits this conclusion and instead merely observes that “[a]dditional research would provide more information into how constructed streams compare to natural undisturbed streams.” AR_0250932. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 32 of 43 PageID 880 22 performance standards. AR_0263032-0263033. These failures violate the Clean Water Act. D. The Corps deprived the public of a hearing on the SPE Mine To ensure informed and transparent environmental decisionmaking, the Clean Water Act and NEPA require the opportunity for significant public engagement. 33 U.S.C. §§ 1251(e), 1344(a); 42 U.S.C. § 4332(2)(C). Corps regulations establish that a request for a public hearing “shall” be granted “unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interested served by a hearing,” makes such a determination in writing, and communicates his reasons with the requesting party. 33 C.F.R. § 327.4(b); see also 33 C.F.R. Part 325, App. B § 11. The Corps denied the requests of the Center, and several other members of the public, for a public hearing on SAJ-1993- 01395. See AR_0289807; AR_0287128; AR_0287344; AR_0287374. In denying the Center’s request, the Corps failed to state why it was denying the request beyond reciting the regulation. AR_0289807 (“I have reviewed the information you provided and have concluded that there is no valid interest to be served by a hearing.”). Such a reply is inadequate and in violation of the Clean Water Act. Moreover, the SPE Mine deals with an issue of “substantial environmental controversy” and there was “substantial interest in holding a hearing,” as evidenced by overwhelming public engagement. 40 C.F.R. § 1506.6 (c)(1); AR_0287128-0287129. While the Corps held hearings on scoping and the DAEIS, those meetings were four years before the site-specific review for the SPE Mine was made available and a year before the Corps issued an addendum to the FAEIS. In those intervening years, the Corps has made three requests for additional information, attempted to address numerous unresolved issues, revised Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 33 of 43 PageID 881 23 its Uniform Mitigation Assessment Method scoring, and amended the compensatory mitigation plan. AR_0280359-0280361. This shell game deprived the public of meaningful participation. IV. The Corps and Service are violating the Endangered Species Act The ESA reflects Congress’ “plain intent . . . to halt and reverse the trend toward species extinction, whatever the cost.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 (1978). It requires the Service and federal agencies to “consult” on federal actions to ensure they will not “jeopardize the continued existence” of protected species. 16 U.S.C. § 1536(a)(2). When species may be affected by the action, the Service must consult with the federal agency and memorialize its decision in a biological opinion (BO). Id. § 1536(b); 50 C.F.R. § 402.14(g), (h). The ESA also prohibits “take” of protected species, which includes harassing, harming, or killing them, 16 U.S.C. § 1532(19), unless the Service lawfully issues an incidental take statement (ITS) authorizing a limited amount of take that is incidental to the federal action. Id. § 1536(b)(4)(C)(i); 50 C.F.R. § 402.14(i); Miccosukee Tribe of Indians v. United States, 566 F.3d 1257, 1271-72 (11th Cir. 2009). Phosphate mining rips away all vegetation, changes the contours and characteristics of the soil, manipulates groundwater levels, and produces tons of hazardous waste; AR_0250398-0250400; AR_0250402-0250403, altering the complex hydrology, geology, and ecology of the area’s rural and natural landscape. AR_0250749-0250750; AR_0250904; AR_0250909-0250910. Reclamation notwithstanding, mining activities will forever change the landscape, leaving only an attempted approximation of natural conditions. AR FWS 011851-011852. The ESA requires that the Service consider these impacts and ensure they Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 34 of 43 PageID 882 24 will not jeopardize species. 16 U.S.C. § 1536(a)(2), 50 C.F.R. §§ 402.02, 402.14(g). The Service must “[e]valuate the effects of the action and cumulative effects on the listed species.” 50 C.F.R. § 402.14(g)(3). “Effects of the action” are extensive and include “the direct and indirect effects of an action on the species . . . , together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline.” Id. § 402.02. The environmental baseline includes “the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early [ESA] consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.” Id. “This includes the effects of existing Federal projects that have not yet come in for their [ESA] consultation.” AR_0021941. The “action area” includes “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.” 50 C.F.R. § 402.02. This comprehensive, common-sense review ensures federal actions will not push endangered or threatened species to the brink of extinction. A. The Corps and Service failed to consider the impacts of the mines planned for Bone Valley The Corps and Service arbitrarily and capriciously failed to take a hard look all impacts by failing to consult on the AEIS, to consider the cumulative effects of other mines in its consultation on the SPE Mine, and to analyze impacts from habitat destruction. The AEIS is a “programmatic level” action that requires its own consultation. Fla. Key Deer v. Paulison, 522 F.3d 1133, 1141-44 (11th Cir. 2008); Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1082, 1085 (9th Cir. 2015). The FAEIS provides the Corps with Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 35 of 43 PageID 883 25 discretion to consider species’ protection through its environmental consequences and alternatives analyses, which can lead to choosing an outcome other than the originally proposed project; consequently, the Corps and Service should have consulted on it. Fla. Key Deer, 522 F.3d at 1141-44; but see Nat. Res. Def. Council v. Nat’l Park Serv., No. 2:16-cv- 585-FtM-99CM, 2017 U.S. Dist. LEXIS 61428, *103-104 (M.D. Fla. Apr. 24, 2017). Likewise, the environmental baseline for the SPE Mine should have included the Wingate East, Desoto, and Ona mines because the Service and Corps were in engaged in contemporaneous consultation on them. 50 C.F.R. § 402.02 (defining the environmental baseline to include projects that are undergoing or have undergone consultation); AR FWS 011763, 011659-011660, 011742, 012241, 012340-012344. Failure to consider the impacts of the three mines with those of the SPE Mine, either through consultation on the FAEIS or as part of the environmental baseline analysis for the SPE Mine consultation, violates the ESA and unlawfully leaves impacts on species entirely unconsidered. See Defs. of Wildlife v. Babbitt, 130 F. Supp. 2d 121, 127 (D.D.C. 2001). As explained above, phosphate mining, fertilizer processing, and creation of phosphogypsum are vertically integrated and thus interdependent and interrelated actions that should have been analyzed as well. See 50 C.F.R. § 402.02 (definition of “effects of the action”). In the BO for the SPE Mine, the Service failed to adequately analyze the most significant impact mining will have on species: habitat destruction. The Service did this by improperly discounting the impacts of the 20-year mining permit as “temporary.” AR FWS 022163, 022189, 022190, 022194, 022195, 022197, 022203. The characterization of the impacts to habitat as “temporary” overlooks the significant, long-term impacts of clearing Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 36 of 43 PageID 884 26 thousands of acres of the land and displacing species and native soils for more than a decade. AR_0277904-0277905. The ESA requires the Service to analyze the impact of habitat destruction and degradation regardless of its duration. See, e.g., Pac. Coast Fed’n of Fishermen’s Ass’ns v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1037-38 (9th Cir. 2001) (concluding NMFS’ failure to consider even short-term habitat degradation impacts was arbitrary and capricious). In addition, it discounts the effect on species from replacing that natural landscape with a mere “habitat analogue” that is designed only “to approximate . . . natural conditions.” AR_0277904-0277905. Because natural conditions can only be approximated, not restored, it is arbitrary to characterize these impacts as temporary. Further, to “offset” the SPE Mine’s impacts, the Service relies on mitigation measures that are unproven, unspecified, and unenforceable. See, e.g., AR_022189; AR_022203. This is in violation of the ESA’s mandate requiring that “[m]itigation measures . . . be reasonably specific, certain to occur and subject to deadlines or other forcible obligations.” Fla. Key Deer v. Brown, 364 F. Supp. 2d 1345, 1355-56 (S.D. Fla. 2005). The record reflects significant uncertainty with regard to whether mitigation measures proposed for the SPE Mine will be sufficient to render its impacts on species temporary. For example, although the Service concludes that the eastern indigo snakes will return to the SPE Mine site following reclamation, AR FWS 022199, the study it cites to support this conclusion did not examine whether species originally present on mine sites return after mining and reclamation. AR FWS 006369. Rather, it surveyed species presence at reclaimed sites and found indigo snakes at only 3 of 62 study sites. AR FWS 006369, 006448-006449. Likewise, non-peer-reviewed white papers touting the “success” of mitigation Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 37 of 43 PageID 885 27 strategies admit that previously reclaimed wetlands have not reached regulatory release criteria intended to evaluate mitigation success. AR_0288125. When considering the impacts of the action, the Service must use the “best scientific and commercial data available” and provide a “detailed discussion of the effects of the action on the listed species.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(d), (h)(2); Fla. Key Deer, 364 F. Supp. 2d at 1353. These studies and papers fall far short of this requirement. Moreover, even if these impacts could be construed as temporary—which they cannot—nothing in the ESA or its implementing regulations permits the Service to ignore temporary impacts. B. The Service’s ITS unlawfully fails to specify take and provide a meaningful trigger to reinitiate consultation “Take” of species includes “harassing” them, which means “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 U.S.C. § 1532(19); 50 C.F.R. § 17.3. When the Service anticipates take will occur, it must issue an ITS that “specifies . . . the amount or extent of . . . incidental taking of a listed species.” 50 C.F.R. § 402.14(i)(l)(i). An ITS may lawfully allow take of a threatened or endangered species “as long as the statement sets a ‘trigger’ for further consultation at the point where the allowed incidental take is exceeded, a point at which there is a risk of jeopardizing the species.” Miccosukee Tribe, 566 F.3d at 1271-72. The purpose of this trigger is to “alert the agency when the allowed incidental take has been exceeded,” and, thus, prevent irreversible harm to the species. Id. at 1272. The Service must establish a trigger by: (1) setting a numerical “cap” or, in limited circumstances, a rational surrogate to limit take; and (2) specifying monitoring Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 38 of 43 PageID 886 28 provisions to assess actual take and effectuate the trigger. Id. at 1275. The Service violated each of these requirements in its ITS for the SPE Mine. First, the Service failed to quantify take in the form of harassment for wood storks and eastern indigo snakes. For wood storks, the BO states that the project will “disrupt” the storks’ ability to forage, yet the Service unlawfully declined to quantify those activities as a take because they will be “temporary.” AR FWS 022203. Likewise, the BO and ITS acknowledge that “harassment is predicted” for eastern indigo snakes. AR FWS 022203. Yet unlike the numerical cap of “no more than six (6) indigo snakes” set for take for death or direct injury, AR FWS 022202, the Service set no cap on take for harassment, nor did it explicitly include such take in the six-snake limit set out for more direct forms of take. 17 AR FWS 022203. The Service’s failure to specify take for harassment of the wood stork and eastern indigo snake directly violates the ESA. 16 U.S.C. § 1536(b)(4)(C)(i); 50 C.F.R. § 402.14(i)(l)(i); see Miccosukee Tribe, 566 F.3d at 1275. Second, the Service failed to establish monitoring and reporting provisions that effectuate the “trigger” signaling authorized take has been exceeded. Wild Fish Conservancy v. Salazar, 628 F.3d 513, 531 (9th Cir. 2010). Monitoring programs should be designed to: (1) detect adverse effects; (2) assess the actual level of incidental take compared to the anticipated incidental take in the Biological Opinion; and (3) detect when the level of anticipated incidental take is exceeded. AR_0021346. Here, the Service failed to provide effective monitoring provisions by failing to set monitoring requirements for take of eastern indigo snake egg clutches and take in the form of 17 By contrast, the Service explicitly accounts for take in the form of harassment for Audubon’s crested caracara. AR FWS 022202. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 39 of 43 PageID 887 29 harassment for caracaras and wood storks. AR FWS 022201-022203. The Service also concedes that “the only direct measure of harassment of eastern indigo snakes will be . . . annual counts of indigo snakes recorded on site and reported during annual monitoring events.” AR FWS 022203. This monitoring mechanism is ineffective and unlawful because it “stands in marked tension with the regulatory requirement that [the agency] reinitiate . . . consultation ‘immediately’” if incidental taking is exceeded. Oceana, Inc. v. Pritzker, 75 F. Supp. 3d 469, 498-99 (D.D.C. 2014) (quoting 50 C.F.R. § 402.14(i)(4) in finding a monitoring mechanism that assessed take every five years was ineffective). C. The Corps and Service unlawfully failed to reinitiate consultation The Corps’ and Service’s duties to consider species impacts are ongoing, and they must reinitiate consultation if (1) “new information reveals effects of the action that may affect listed species . . . in a manner or to an extent not previously considered” or (2) if subsequent to completion of consultation, “the identified action is . . . modified in a manner or to an extent not previously considered.” 50 C.F.R. § 402.16(b), (c). Here, (1) the activities at the SPE Mine were modified in a manner or to an extent not previously considered by the Service during the more than two years between the Service’s BO and the Corps’ permit for the SPE Mine, e.g., compare AR_0275566; AR_0275568-AR_0275570 with FWS 011296; FWS 011296-FWS 01129697 (demonstrating changes in types of wetland reclamation and diversity of plant species used in wetland reclamation, which occurred after the BO); (2) scientists published new information demonstrating the eastern indigo snake analyzed in the 2014 BO is in fact two genetically distinct—and consequently rarer—species, AR FWS 022228-022248, meaning the SPE Mine’s impacts on individual snakes will impact the Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 40 of 43 PageID 888 30 species as a whole to a greater degree than previously considered; and (3) a sinkhole opened beneath a phosphogypsum stack at Mosaic’s New Wales plant on September 15, 2016, allowing at least 215 million gallons of contaminated waste water to pour into the Floridan aquifer. AR_0292514-0292515. The agencies’ failure to reinitiate consultation on these previously unconsidered impacts violates the ESA and APA. See 50 C.F.R. § 402.16(b), (c). D. The Corps’ reliance on the BO violates the ESA and APA The Corps has an independent duty to ensure its actions do not jeopardize listed species. It cannot abrogate that responsibility by arbitrarily and capriciously relying on an insufficient BO or concurrence letter. See Fla. Key Deer, 522 F.3d at 1144-45. Because the BO and ITS violate the ESA and APA, the Corps’ reliance on them to fulfill its procedural and substantive consultation obligations is arbitrary, capricious, and in violation of the ESA. See Haw. Longline Ass’n v. Nat’l Marine Fisheries Serv., 281 F. Supp. 2d 1, 26-27 (D.D.C. 2003) (finding an agency acted arbitrarily and capriciously by relying on an invalid BO). CONCLUSION For these reasons, Plaintiffs respectfully request this Court grant them summary judgment on all Counts and (1) vacate and remand the EA, FAEIS, ROD, and SAJ-1993- 01395; (2) declare that the Corps’ approval of SAJ-1993-01395 violated NEPA, Corps regulations, and the APA; (3) vacate and remand the Service’s 2014 biological opinion; (4) declare that the Corps’ and Service’s consultation on SAJ-1993-01395 violated the ESA and the APA; and (5) declare and order that the Corps and Service reinitiate consultation on SAJ- 1993-01395. Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 41 of 43 PageID 889 Dated: June 30, 2017 /s/ Jaclyn Lopez JACLYN LOPEZ, Trial Counsel FL Bar No. 96445 Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 Tel: (727) 490-9190 Fax: (520) 623-9797 jlopez@biologicaldiversity.org /s/ Hannah M.M. Connor HANNAH M.M. CONNOR FL Bar No. 125378 Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 Tel: (202) 681-1676 Fax: (520) 623-9797 hconnor@biologicaldiversity.org /s/ Elise Pautler Bennett ELISE PAUTLER BENNETT FL Bar No. 106573 Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 Tel: (727) 755-6950 Fax: (520) 623-9797 ebennett@biologicaldiversity.org /s/ John Peter Rose JOHN PETER ROSE CA Bar No. 285819 (pro hoc vice) Center for Biological Diversity 1212 Broadway, Suite #800 Oakland, CA 94612 Tel: (510) 844-7100 Fax: (510) 844-7150 jrose@biologicaldiversity.org Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 42 of 43 PageID 890 CERTIFICATE OF SERVICE I hereby certify that on June 30, 2017, I electronically filed the foregoing Motion for Summary Judgment and Supporting Memorandum of Law with the Clerk of the Court by using the CM/ECF system, which served all counsel of record registered with the CM/ECF system for this case. /s/ Jaclyn Lopez JACLYN LOPEZ, Trial Counsel FL Bar No. 96445 Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 Tel: (727) 490-9190 Fax: (520) 623-9797 jlopez@biologicaldiversity.org Case 8:17-cv-00618-SDM-MAP Document 61 Filed 06/30/17 Page 43 of 43 PageID 891 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF ANDRE MELE I, Andre Mele, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I have been the Suncoast Waterkeeper almost three years, and prior to that, for ten years, I was the executive director and advocacy director for Hudson River Sloop Clearwater, Inc. As the Suncoast Waterkeeper, I have been actively engaged in work related to its mission, which is to protect the water quality for biodiversity and humans in Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 1 of 12 PageID 892 2 the region from Tampa Bay to the Sarasota Bay system, its watersheds and tributaries. Suncoast Waterkeeper is one of over 300 satellite groups of the Waterkeeper Alliance, which fights for basic protections for water quality around the world. 3. The fight against nutrient pollution is where we first saw a clear connection to phosphate mining, because runoff from the mines and the phosphogypsum stacks, punctuated by frequent accidental and intentional massive releases of contaminated water, along with runoff from fertilizer applied inland, is harming the region’s water quality. West-central Florida, aka Bone Valley, is home to most of the major tributaries that pour into Tampa Bay and the Gulf of Mexico in this region, including Sarasota Bay and Charlotte Harbor. The Peace River, Myakka River, Manatee River, and the Alafia River, along with many smaller, interconnected tributaries and streams, comprise the universe of waterways coming out of the mining district – all of them impaired, all of them threatened, and all of them periodically subject to major insults from the many toxic contaminants produced and concentrated by the phosphate mining process. 4. The Waterkeepers are sworn to a mission of water quality for biodiversity and human populations. I have been actively engaged in environmental work both as a professional and as a volunteer for the last twenty-plus-years. When I first encountered the ecological horror that is phosphate strip mining, I realized immediately that I was looking at what I believe to be the worst, by far, environmental disaster in Florida, in the Southeast, and in fact, in the United States. The mountains of radioactive waste in the form of 24 phosphogypsum stacks, alone, totaling over a billion tons, comprise the largest repository of toxic and hazardous waste in the nation, according to the EPA. Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 2 of 12 PageID 893 3 5. I am also a member of People for Protecting Peace River (“3PR”), ManaSota-88, and Center for Biological Diversity (“Center”). I attend the organizations’ meetings, read the newsletters and action alerts, and maintain active communication with the leadership of the three organizations. The Center has the most specific mission relating to protection of endangered species, and I rely on them to represent my interest in conserving endangered species and habitats. 6. I have a master’s degree in environmental science from Bard College, with a focus on the economic effects of environmental impacts. My thesis was entitled “Demand-Side Environmental Impact Assessment,” and it focused on practical applications of some critical new theories of environmental economics, specifically consumers’ understanding of their own environmental impact, and what any resulting changes in their market behavior might be. This is microeconomics at its optimum – the restoration of the concept of “perfect information” to the supply-and-demand curve, without which market distortions reign unchecked. 7. Because of my professional and academic background, I believe that Mosaic, the principal phosphate mining company, has created its own market narrative, a story that was and remains filled with mistruths, disinformation and errors of omission. I have seen the many advertisements and sponsorships, and wondered what I am buying from them, and why are they giving me the hard-sell. I don’t buy phosphate. They are selling an image, and building a sympathetic base in the regional population. It is my belief that Mosaic’s business thrives in the dark, unseen, and concealed further by a curtain of grossly misleading propaganda—the antithesis of an efficient market. What are they Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 3 of 12 PageID 894 4 hiding? The answer is simple: If people actually knew what phosphate mining and fertilizer manufacturing entails, and how permanently it impacts the land and habitat, they would never allow it to continue. 8. Suncoast Waterkeeper is deeply concerned with the Corps’ decision to approve phosphate mining because of the destruction of natural habitat that occurs as a result of phosphate mining. The Corps’ decision to approve phosphate mining is clearly built on a house of cards because it passively depends in its entirety upon Mosaic’s assurances – unsupported by historic real-world performance – that it can engineer and build new wetlands systems that outperform and outrank, in UMAM (uniform mitigation assessment measures) scores, the originals. It avoids almost completely the first principles of wetlands law – avoidance and alternatives – and goes straight to mitigation, and where mining will have completely obliterated the headwaters of a river, engineered systems. There may be some benefit to be derived in the very long run from Mosaic’s engineering processes, especially in the sinuous re-routing of straight ditched waterways built by ranchers to drain the soil and wetlands, but Mosaic and its consultants – and the regulators, including the Corps – are the only ones who accept Mosaic’s assurances to “put it back better than it was.” The facts are that built wetlands, while they may be engineered to suit the specific metrics of UMAM scoring, are not guaranteed to last for long, or to match the habitat values of true natural wetlands. I am also astonished and appalled that the surficial aquifer is obliterated by phosphate mining, and believe the restoration of aquifer flows and propagation will not be as straightforward an engineered solution as Mosaic and the Corps think. Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 4 of 12 PageID 895 5 9. Furthermore, it seems to me that the Corps has a conflict within its own mission: An agency that builds bridges and straightens rivers in the name of flood control, that digs canals and dredges critical habitat in the interests of commerce cannot be expected to weigh without bias the relative advantages or disadvantages of built wetlands and natural ones. It is also highly vulnerable to political pressure, as well-financed permit-seekers bring their members of congress and the ever-present threats to cut funding to bear in the pursuit of influence. 10. Phosphate mining strips away the entire landscape to a depth of sixty feet, and then fills it back in with contaminated sand and clay with their nutrients removed, and dirt, possibly imported from other countries on Mosaic’s well-established shipping and trade routes, and possibly carrying with it alien and unfamiliar biota. I am concerned about what will become of the landscape because it is unsuitable for most species, and the soil is depleted. By Mosaic’s own description, topsoil, or “overburden,” is piled up during mining, and then used to backfill the landscape, along with sand tailings. The material that is dug out from those wetlands, and uplands, will go to plants where the ore is separated out. The clay and sand waste, adsorbed to tons and tons of fuel oil and other reagents, that is created during that process will come back to “clay settling areas” that contain these hazardous and toxic materials, and have never proven to support any known economic activity. Those pollutants will stay there, a part of the landscape, in perpetuity. 11. Then the phosphate ore is exposed to sulfuric acid, which creates waste fluorides, heavy metals, arsenic, and radioactive uranium and radium, concentrated up to 60 times their naturally-occurring levels. This process brings the radioactive materials to the Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 5 of 12 PageID 896 6 surface and concentrates the radioisotopes and radionuclides. For every one ton of marketable product that is produced, five tons of phosphogypsum get sent to a stack to sit forever, poisonous and radioactive. 12. I live in a rural and agricultural area in Myakka City, near the Myakka River, a few miles away from several phosphate mine areas, including the Wingate East Extension Mine. I am just four miles from where the Keyes Tract will stop its westward expansion. We will see the dragline lights illuminate the night sky for decades during the mining of tens of thousands of acres. Many of the bird and mammal species that I enjoy when they visit my property, sometimes just leaving their tracks, will be impaired by the loss of tens of thousands of acres of habitat nearby. They will be disrupted and scattered, with the attendant mortality from encounters with cars, trucks, and people, struggling to find food and forced to locate nests in shrinking territories that are already supporting animals in competition with them. I will be harmed by this because I enjoy seeing them on my property and take spiritual comfort in knowing they exist. 13. On my property, I see bald eagles, crested caracaras, and other protected species on almost a daily basis. The first time I saw a caracara, I experienced such joy. I had never seen one, and did not even know they existed. It was as if I had discovered a new species. And in a sense, I had. I even found a Florida panther paw print on my property a few years ago. Everybody in the area knows that panthers are here, possibly in mating pairs. The only people who refuse to accept the fact are the regulatory agencies. I am concerned that the encroachment of the mines and the attendant loss of habitat will make it impossible for species to continue to survive in this region. Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 6 of 12 PageID 897 7 14. I also explore nearby areas, like Myakka River State Park, which is just next door to me, and spend a great deal of time there. I enjoy kayaking the Myakka River, but I am happiest when I am on foot with a pair of binoculars and my eyes wide open. I am trying to visit as many state parks as I possibly can. State parks are important to me because they are a repository for a diverse group of species. The land that the phosphate company wants to mine is a mix of habitats, including agricultural land, pine flatwoods, upland hammocks, wetlands, and amazing biodiversity. If phosphate mining alters these habitats, that biodiversity will cease to exist in these areas, and that would take from me one of the principal reasons I have located here. 15. I’m originally from New York, and to me, Florida has been a wonderful land of new plant and animal species. I enjoy hiking and observing what’s around. When I drive, I always keep a lookout for wildlife. There have been panther sightings around where I live, and one night I heard a yowl that could only have been a Florida panther. I am so impressed by how adaptable wood storks have become, losing so much of their native habitat and persisting against all odds in suburban neighborhoods. I’ve never seen an eastern indigo snake, but I keep an eye out for them and have identified about a dozen other types of snakes in my treks through Bone Valley. 16. I believe in a higher being, in an overarching guidance. I believe in God, and that all animals, trees, and bugs are essential components of life. From my spiritual perspective, every single animal has an intrinsic right to exist. We live in a profoundly elegant system. A system that has been created by an ageless God, and that has evolved in its own way for millennia. It is sublime, but its sublimity is constantly under stress and Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 7 of 12 PageID 898 8 being compromised by things like phosphate mining. Phosphate mining is apocalyptic. The phosphate mining industry bulldozes and burns every living molecule on land to be mined. The machines come in and destroy everything. They remove the top 60-80 feet of entire landscapes, and then they just fill the pits they dig out with sand. It is astonishing. It flies in the face of every single belief I have in the way that humans should coexist with nature. 17. I enjoy kayaking on the Myakka River and so do a lot of my friends. That is an important part of my enjoyment of nature. I am right near the Sarasota line, where Myakka River flows into the state park and enjoys Wild and Scenic designation. I am concerned that if phosphate mining destroys the headwaters, my enjoyment of the river and recreational satisfaction will be compromised. I am worried that mining will dig up the watershed and will use a lot of water for operations which will pull down the water table. Already our pond is lower than it has ever been. In Polk County, where half the county has been mined out, with the help of the Corps, there is a water crisis because of phosphate mining’s drawn-down of the groundwater and because of altered hydrology post-reclamation. 18. I’ve wanted to go on the Alafia River, but people have told me not to go near it. I believe the Alafia has become a sewer for the phosphate industry. Many “water conveyance features” spill into the river and into nearby “lakes,” crudely reclaimed clay settling areas, carrying toxins, diluted to meet regulatory standards, but in no way diminished, known only through their NPDES (national pollution discharge elimination system) permits, which are closed to citizen inquiries on the Florida Department of Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 8 of 12 PageID 899 9 Environmental Protection’s Oculus site. Fish are being killed constantly. Lithia Springs was closed shortly after the 2016 sinkhole at New Wales, and we were told it was because of high water. And yet, photographs and anecdotal reports indicate the opposite – that the water was low, laden with mysterious sludge and smelling like kerosene and turpentine. 19. I also enjoy tubing, sightseeing, fishing, and clamming in Tampa Bay and am worried that the increase in phosphogypsum in the stacks along the Alafia River at the Riverview and New Wales “gypstacks” will impact my ability to continue those activities. The stacks are a clear and present danger. Nothing the phosphate industry does will ever remove them. They’ll be there forever. Thousands of years from now archeologists will look at them and wonder. Based on my conversations with people who live near these gyp stacks, I am convinced there are heath issues associated with them. I believe future generations will be dealing with the health impacts for hundreds of years. They are not anything I would want to live near, and I am concerned about impacts to my health and the health of people within my community. 20. According to the EPA’s Consent Decree with Mosaic (2015), they are the largest repository of hazardous waste in the country. It is also one of the best-kept secrets in the country. I believe that if the public, and specifically, tourists, find out that Florida is allowing the phosphate industry to store mountains of radioactive hazardous waste in the midst of communities, that people won’t want to live or visit Florida. Most people who see the flat-topped mountains don’t even know what they are. Most people think they are Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 9 of 12 PageID 900 10 old landfills. When I found out they were toxic waste dumps, I was outraged. Nobody wants to live by them, yet people do. They’re mostly poor, or have been rendered poor. 21. I am very concerned that the habitats of the native wildlife will be destroyed by phosphate mining, and the wildlife will not have anywhere to go. I believe they have just as much of a right to survive and persist as we do. Diversity is like insurance for the natural world. If you have diversity in a farm, and something happens to one of the other crops, you still have the other crops. The same is true for species, they all interact together by grand design, not by someone’s idea that we as humans can make this better. The land that will be destroyed when mined will not be reclaimed into something better then what was there naturally before. 22. I am concerned that Mosaic appears to maintain showplaces to create the appearance of sustainability and flourishing nature on reclaimed mined lands, but that wildlife, including endangered species and native plants are not going to be able to recolonize these areas. I am incredibly concerned about how this will affect my future ability to enjoy the wildlife and nature in this area. The concern causes me great stress. As an example of why I am concerned about the long term affects of these reclamation activities, I do not believe a sufficient budget is maintained by the phosphate industry to recreate the ecosystem removed through mining practices, and I don’t believe there is adequate oversight, including inspections, of these properties to ensure adequacy of the mining company’s reclamation practices. 23. I don’t believe that the Corps gets out to these sites very much and I don’t think it is being thorough. I believe the Corps doesn’t particularly have a great sense or Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 10 of 12 PageID 901 11 appreciation for the intrinsic value of wildlife and nature. I am concerned that the Corps too easily allows applicants to skip over saving original wetlands in favor of engineering new ones. To my understanding, these built wetlands, which have a poor record of success, are widely regarded throughout the scientific and environmental community as a dubious proposition. 24. I believe that the Corps’ decision to allow the proposed phosphate mining is incomprehensible. The phosphate industry should not be allowed to continue to receive permits to destroy our land—our regional patrimony and character. Every time a phosphate mine permit gets approved, it becomes that much easier for the company to get their next permit approved. I believe the Corps’ record of giving permits and facilitating widespread destruction of wetlands in Florida is shameful. The Corps has created a slippery slope, and I do not believe they are being thorough enough in the permitting process to come close to justifying their abdication of responsibility and stewardship for the nation’s wetlands. 25. Phosphate mining is anathema to everything I value, my belief system in how we need to balance our needs with the needs of the natural world, otherwise we’re going to end up with a sterile environment and I’m not going to be very happy about it. Phosphate mining is an unnecessary relic of the past, an artifact of the historic market. We’re on the ride side of history in not shifting away from these outmoded relics of the green revolution. As an American, it galls me that Mosaic destroys our patrimony. Land is what gives us our cultural identity. Taking that away, permanently, it is unforgivable. It has to stop. Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 11 of 12 PageID 902 Case 8:17-cv-00618-SDM-MAP Document 61-1 Filed 06/30/17 Page 12 of 12 PageID 903 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF AMY LEE RICHARDSON I, Amy Lee Richardson, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my opinion and judgment upon the matter. 2. I have been a member of People for Protecting Peace River (“3PR”) for two years. As a member of 3PR, I attend the meetings and give financial support. 3. I rely on 3PR to represent my interest in conserving endangered species and the environment. Case 8:17-cv-00618-SDM-MAP Document 61-2 Filed 06/30/17 Page 1 of 5 PageID 904 2 4. I am concerned about the Army Corps’ decision to approve phosphate mines in Florida because I am worried about the loss of wildlife habitat, impacts to water, and the possibility of new sinkholes due to nearby phosphate mining. 5. My husband and I own 10 acres of land just south of the proposed Ona Mine and South Pasture Extension Mine. 6. We bought this property because we enjoy the wetlands aesthetic and the presence of species on the property. We have racoons, bobcats, rabbits, skunks, foxes, deer, and very diverse bird activity, including sandhill cranes, wood storks, roseate spoonbills, crested caracaras, bald eagles, swallow tailed kites, pileated woodpeckers, barred owls, hawks, and bluebirds. There’s been a black bear sighting on our neighbor’s property. And we routinely see plenty of alligators and snakes. We also have wild turkeys and really cool black bellied whistling ducks, which look more like geese, but are actually ducks. 7. I enjoy sitting on the back porch, watching wildlife. One time I was watching a deer with a fawn. I heard a strange noise and observed the deer running back and forth between our property and next door. On the property next door, I saw her fawn lying on the ground and the bobcat that had just killed the fawn; the bobcat was in the process of dragging it into an oak tree. It was very sad but one of those amazing wildlife experiences that you only see in rural Florida. 8. I am concerned that the nearby phosphate mines will result in the loss of habitat for these magnificent creatures. I am worried that the animals will be disrupted by the noise, increased population, machinery, destruction of habitat, loss of food sources and Case 8:17-cv-00618-SDM-MAP Document 61-2 Filed 06/30/17 Page 2 of 5 PageID 905 3 water, and impact on the streams in the area. I am concerned that this will make wildlife less plentiful on my property and in the area. 9. I travel a lot for work, usually in urban areas, like LA, San Francisco, Chicago, and Dallas. It is the hustle and bustle of the urban work world that makes me greatly appreciate where I live. I look forward to coming home to nature, quiet and serene, and to the slower pace of life. It’s a beautiful setting and very soul-nourishing to sit on the back porch and watch what may cross through the pasture. For me it is my happy place after travel. 10. I take great joy in the aesthetic beauty of where we live and all the animals, birds, and reptiles that we encounter. It makes me sad to think about the potential loss of the habitat from phosphate mining. 11. I think of myself as a spiritual person inspired by nature. We only have one planet. It is ours to take care of, and we’re not doing such a great job. I think it is a travesty that this destruction takes place when there are alternatives to phosphate mining and the use of phosphate. We are shepherds of the planet and if more people took time to enjoy nature and understand how linked everything is, we’d all be in a better place. 12. I spend a lot of time outdoors and enjoy gardening and recreational pursuits. We have worked to establish some butterfly gardens by planting milkweed and other food- source plants. I’d be negatively impacted by the phosphate mines as they’d eliminate thousands of acres of habitat just north of me and forever alter the watershed. 13. I believe that all creatures have a right to exist. They were here first. I think the whole phosphate industry is driven by big agricultural demand, rather than actual Case 8:17-cv-00618-SDM-MAP Document 61-2 Filed 06/30/17 Page 3 of 5 PageID 906 4 necessity. If we got back to family farms and smaller crops grown sustainably, the need for phosphate would diminish. We’d also be getting back to a heathier way of living. I don’t like eating foods that have been grown through heavy use of fertilizer (phosphate being a key ingredient); and unfortunately, the slow food movement (eating local, sustainably grown foods) is slow to catch on in the middle part of Florida where we live. If we could reduce the need for phosphate, we wouldn’t have this massive loss of habitat and species. 14. On the north end of our property, there is a culvert that goes under Highway 64, so when it rains, water flows freely through the culvert to where mining is proposed at the Ona Mine. If this area is disrupted, it could cause flooding on our property. With the current topography, the wetland fills up and water goes through the culvert and along eastern boundary to the south end of our property; I am concerned that disruption on north side of Highway 64 would impact water runoff on our property. 15. We’ve made such great strides across the country cleaning up contaminated rivers and waterways. I see the potential for sliding backward in my area with phosphate mining. We have a lot of kayaking and canoeing on the Peace River, and I am worried that phosphate mining will impact the quality and quantity of water. I visit Charlotte Harbor estuary, Alafia River, and Tampa Bay occasionally to walk and look for birds. I am concerned what impact phosphate mining will have on these nearby water resources. 16. I believe phosphate mining is not sustainable. We should be looking at other ways to avoid the need for large scale use of fertilizer. If we as a population can figure out a Case 8:17-cv-00618-SDM-MAP Document 61-2 Filed 06/30/17 Page 4 of 5 PageID 907 Case 8:17-cv-00618-SDM-MAP Document 61-2 Filed 06/30/17 Page 5 of 5 PageID 908 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF BROOKS ARMSTRONG I, Brooks Armstrong, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I have been a member of People for Protecting Peace River (“3PR”) for about ten years, and am currently the President. As President, I have an active role in chairing the board meetings, in addition to our annual membership meeting. Our goal is to educate the Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 1 of 9 PageID 909 2 public regarding the realities of phosphate strip mining in Florida, and to fight against the expansion of this destructive practice. 3. I am also a supporter of the Center for Biological Diversity (“Center”). I pay my annual dues, respond to online petitions, and help with anything I can for the wider efforts of the Center. I also give financial contributions to the Suncoast Waterkeeper. I rely on these organizations to represent my interests in conserving endangered species and their habitats. 4. I am concerned about the Corps’ decision to approve phosphate mines in Florida because I believe that phosphate mining is an unethical destruction of sacred land. Human beings are stewards of the land, and there are certain things that we should not allow to be done to the land, such as strip mining. The natural world is wholly connected, and phosphate mining should not be allowed to destroy that connection. I believe that everything is affected by the Corps’ decision to allow expanded mining in the area, from human health, to wildlife, plant life, property values and the agricultural economy of the area. 5. I am particularly concerned with the South Pasture Extension Mine as it will set a terrible precedent for other mining proposals in the area. I do not believe the Corps should be allowing this disruption to occur in my county, ever closer to my home. Mines are moving closer to my land, and any degradation of neighboring lands degrades my own in many ways. 6. First, I am greatly concerned about the wildlife and their habitat. I am worried that some species will become extinct in our area because of the impacts of phosphate mining. Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 2 of 9 PageID 910 3 Many animal species are dependent on very specific habitats for their existence. As an example, the gopher tortoise and eastern indigo snake need high, dry upland habitat to maintain their populations. Mining deceases the amount of quality upland remaining after reclamation. These habitats cannot be replicated exactly. Biodiversity is the key to preserving natural lands. 7. I observe wildlife daily. I live on twenty acres of rural land in Hardee County, and I moved here just for this reason. Observing animals in nature is a key enjoyment in my life. Intact wild areas are very important as an example to us as humans. Intact natural communities are those with all aspects present that would be found in unaltered lands or wetlands. This provides not only the elements, but for the proper function and interaction of those parts of the whole. Examples are palmetto prairies, hardwood hammocks, wetland hammocks, pine flatwoods, each having their unique set of plants, animals and microorganisms necessary for their full existence. The central part of the peninsula of Florida can and should be a sanctuary of complete and intact wild areas for the use and pleasure of all future generations to come. These are the most complex and potentially useful parts of nature as we look to the future, as they are so incompletely understood in present times. What is borrowed for agriculture can come back to natural lands if managed carefully. So a wealth of knowledge is lying there if we choose to be aware of the uniqueness and wonder of this part of the earth. 8. These natural areas are thriving without help from humans. If phosphate mining does not fully destroy the wildlife habitats, it will at the very least degrade the habitat that is needed for endangered and other listed species already in peril. I do not have Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 3 of 9 PageID 911 4 confidence in the ability of phosphate mining companies to relocate wildlife, much less ensure long term viability in new or engineered habitats. Furthermore, the local human population already puts a lot of pressure on wildlife populations. I do not see how wildlife in the area can survive with massive losses and degradations of habitat. 9. When my wife and I had first purchased the rural property we currently live on in 2000, I observed a large snake in an open area near our house. The snake was roughly eight feet long; a heavy-bodied black snake. I know now that it was an eastern indigo snake. This was truly a memorable sight to observe. When we first moved here, we had no neighbors directly within approximately a mile in all directions. The intact contiguous open wild spaces are very important to these rare animals and other species. I have also observed bald eagles, owls, fox squirrels, rattlesnakes, alligators, deer, bobwhite quail, and countless other animal species on and near my property. Witnessing nature at work is spiritually rewarding to me. I take joy in knowing these creatures exist and I am saddened at the thought that these creatures are disappearing. 10. I enjoy photographing wildlife in its natural habitat and traveling throughout the region. Below is a photograph of a wood stork I took in the area slated to become the Ona Mine, near the Oak Creek wetlands, in Ona, Florida. To destroy these wetlands, jeopardizing the wood stork would be a moral mistake and should be a crime, as far as I am concerned. We have seen increasing protections for wetlands in the past few decades and yet incomprehensibly there seem to be rationalizations to continue their destruction in this late day. Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 4 of 9 PageID 912 5 11. I owned a native plant nursery with my wife for ten years on our property in Hardee County. We produced thousands of flowers and flowering shrubs for wholesale and learned a good deal about their propagation and growth needs. I am familiar with native plants and how difficult they are to grow. Often there seems to be no immediate explanation of what makes for successful planting or relocation. We experimented with plantings of nursery grown native plants back into their native habitat on our own land. Even with proper technique, on native soils and elevation, plants may not survive even to a fraction of the numbers planted. This tells me that biodiversity of plant life on reclaimed soils would certainly be diminished from pre-mining conditions. 12. Below is a Lilium Catesbei, or pine lily, a threatened flower that only blooms for five days in a year. I took this picture on my property, and it would have been extremely difficult to locate if not in bloom. This flower usually blooms in September, but not every year. I am concerned that these flowers exist on the land that the phosphate mining Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 5 of 9 PageID 913 6 company seeks to destroy and that the Corps has not done a thorough job of evaluating the land for plant life. The pine lily occurs in pine flatwoods, like the ones that currently exist at the site of the South Pasture Mine Extension. This serves as an example of the peril that rare plants are in within the mining district. 13. For at least twenty-five years I have traveled through the mined out lands of western Polk and eastern Hillsborough counties as a salesman servicing the convenience store businesses in the area. I go to towns like Bradley Junction, Mulberry, Bartow, Ft. Meade, Ft. Green, Ona and Wauchula, monthly. This area bears no resemblance of any natural communities, with the exception of some wetlands. Even these are full of non- native, invasive trees and grasses. There is also no visible agriculture over wide open views—only an occasional few cows. I have traveled almost all of the back country roads between these towns. Berms of earth still stand, and giant stacks of phosphogypsum loom on the horizon. There seems to be no use of this land, even after all these years. Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 6 of 9 PageID 914 7 14. Below is a photograph I took along CR 630 just west of Ft. Meade. An old berm stretches for miles, probably an old “reclaimed” CSA. Invasive cogon grass dominates the steep sides. 15. Below is another photograph I took just south of Bradley Junction showing reclaimed land with invasive Brazilian Pepper in the foreground and open land with cogon grass. There is no visible activity, not even cows on this land. Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 7 of 9 PageID 915 8 16. I fear this is what will become of my community as mining systematically moves southward toward my land. 17. I have spent time traveling to wildlife areas nearby. I have fished in Tampa Bay, boated in the Charlotte Harbor Estuary, spent a good bit of time observing wildlife with friends and family, and fished and canoed on the Peace River and in Horse Creek. The flows to the Peace River are already disturbed by phosphate mining, and I am concerned that the situation will deteriorate if more phosphate mining is allowed in the Peace River and Myakka River watersheds. 18. I believe it is well known that flows to the major rivers are through ground water as well as from surface flow. Ground water seepage is greatly altered during mining, depositing clays where there had been more permeable soils near the river. Therefore flows are often reduced or diverted. Through mining, these soils are irreparably rearranged and many small surface tributaries are mined through. 19. To my knowledge, the Corps’ Areawide Environmental Impact Statement did not adequately address the aftermath of post-reclamation mine lands. It is my belief that these lands will never be returned to what they were. I believe that the Corps’ decision to allow phosphate mining in Hardee County is irresponsible. The phosphate strip mines are an assault on native species, and the only benefit is profit for the phosphate industry. Mosaic does not appear to have any concern for habitat, except in their “best practices” reclamation, which is rare. The FDEP requires only certain minimum standards for reclamation, nowhere near complete habitat repair. Most lands are done only to that standard, which is “to a useful purpose”. I do not understand how these mines continue to Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 8 of 9 PageID 916 9 be permitted after the terrible, highly visible track record of the mining industry. I am concerned about the future of native and rare Florida species if the habitat they need to survive is destroyed by phosphate mining. 20. 3PR, myself, and 3PR’s members are harmed by the Corps’ and Service’s failure to follow relevant environmental laws. We will continue to suffer this harm unless this Court remedies the agencies’ failures. I declare under penalty of perjury that the foregoing is true and correct and was executed on June 5, 2017 in Ona, Florida. ______________________________ Brooks Armstrong Case 8:17-cv-00618-SDM-MAP Document 61-3 Filed 06/30/17 Page 9 of 9 PageID 917 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF DENNIS MADER I, Dennis Mader, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I am the executive director of People for Protecting Peace River (“3PR”). As the executive director, I meet with other board members and help them with strategizing, researching, and planning our advocacy actions. I also help develop the content for our website to disseminate important information to our members and the public. I have Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 1 of 16 PageID 918 2 attended phosphate mining hearings, public meetings (Outstanding Florida Waters Nominee Horse Creek 2001 Arcadia, Wauchula; Ona Mine 2002, Wauchula ), seminars (Mining Conference, Punta Gorda 4/14/2008; USEPA Mining Conference 3/15/2011), workshops (scoping sessions (Corps’ AEIS 2011-12)), and demonstrations (Selby Gardens Sarasota 2013 – 2014). I have offered input at hearings for the South Ft. Meade Mine Extension in Hardee County (2010), Altman Tract in Manatee County (2006), South Pasture Mine Extension in Hardee County (2013), and Wingate East Mine in Manatee County (01/26/2017). I participate directly in 3PR community events and environmental festivals (CHNEP Nature Festival annually since 2008) that pertains to environmental health and safety in our region. 3. I was originally invited to join the leadership of the DeSoto Citizens Against Pollution, Inc., by Al Behrens in 2002. The organization had a successful history of opposing the expansion of phosphate mining and other environmental actions in DeSoto County. I then moved the headquarters to Hardee County, where new mines were in the planning stage, and operated under the name Hardee Citizens Against Pollution. In 2008 we renamed the organization People for Protecting Peace River, Inc., and obtained 501(c)(3) status. 4. The mission of 3PR is to uphold and sustain the natural order and environment in Hardee County and all other areas in the Myakka and Peace River watersheds. 3PR has particularly become interested in phosphate mining because of the impact it has on the natural environment and the watersheds. Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 2 of 16 PageID 919 3 5. I have witnessed firsthand the monumental impacts phosphate mining has had on the environment, and I feel it is unacceptable in its present form. I have witnessed and experienced the impacts of phosphate mining my whole life. My family moved to Lakeland, Florida, in 1946, the year I was born. The first job my father had was as a draftsman for IMC Global, a phosphate company in Mulberry. He was not happy with that job or with Mulberry and held it only about a year. 6. One sad early memory is of Kissengen Springs near Bartow, which was one of our favorite places to swim. In 1950 the springs permanently ceased flowing, which to my understanding, was due to overpumping of groundwater by the phosphate industry. 7. In those days Mulberry was a deplorable place. There was little environmental regulation of the phosphate industry. I believe the town and all the surrounding countryside was shrouded in fluoride dust from the mining and fertilizer production facilities. Little, if anything, was done to attenuate the dust. Years later they installed scrubbers in the stacks to try to deal with the problem. 8. The first house we owned in Lakeland was near the southern city limits, less than a block off South Florida Avenue, on State Road 37, also known as “the Mulberry Highway.” Beyond that highway was the phosphate mining district. Because the industry was not strictly regulated there were miles of abandoned mine pits and service roads, which were our playgrounds as boys. We camped out around there and played endlessly on the maze of dirt roads, spoil piles, and mine pits, which all contained water. As we grew older, since my friends’ fathers were almost all employed in the phosphate industry as engineers and executives we continued to fish, hunt and explore all around those Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 3 of 16 PageID 920 4 abandoned mines with impunity. So there wasn’t much that we didn’t see or smell in terms of unreclaimed phosphate lands. Today, many of those sites have been reclaimed and developed for other purposes – mainly residential. Unfortunately I'm afraid the people who now occupy those homes are unaware of the presence of low-level radioactivity in their living environment. 9. Perhaps one of the most alarming impacts of phosphate mining that I discovered in my youth were numerous five-legged frogs found in an abandoned phosphate pit. This phosphate pit was located directly behind the home of Vince Strawbridge Sr. on School House Road, directly across the street from the old Medulla School House, on the south side of Lakeland near State Road 37. The Strawbridge boys, Rick and Vince Jr., captured some of these frogs and brought them to high school biology class where they were preserved in formaldehyde. I understand now that these deformities were caused by excessive nutrients in the water. 10. I am concerned about the Corps’ decision to approve phosphate mining in Florida through its decision to issue a Clean Water Act permit for the South Pasture Extension Mine because it will have a negative impact on wildlife populations and the natural environment where I live. The South Pasture Extension Mine is particularly concerning to me because it is about fifteen miles north of me and in the watershed where I live and run my business. I fear the value of my land will be negatively impacted by the South Pasture Extension Mine, as I have seen the effect other central Florida mines have had on the value of properties near them. Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 4 of 16 PageID 921 5 11. I depend on the health and beauty of the watershed for my business offering retreats in a peaceful, natural environment. I own twenty-five acres of land, which is bordered on the east by Horse Creek, a tributary of the Peace River, and in the same watershed as the South Pasture Extension Mine. I purchased this land with my wife 23 years ago because it is isolated from urban living and surrounded by woodlands and agricultural land. 12. I operate a business on my property where I sell and provide customized retreat packages on site. These retreats provide my guests with an opportunity to enjoy a quiet interlude in an intact, natural environment that is aesthetically pleasing and conducive to healthy living: clean air, clear water, silence, and wondrous sightings of birds and animal life. The environment is complemented by delicious, nutritious food; warm oil massage; and meditation. We provide our guests with the time and opportunity to heal in the bosom of nature. Therefore, my entire property is essential to the business because I use it to provide a setting for these services. My business depends on the presence of the birds, fish, other wildlife, and plant life that inhabit the watershed because the very nature of my business is based on the integrity of the natural habitat on the property, which is affected by the health of the entire watershed of Horse Creek. 13. My guests come to my property seeking peace and quiet, and communion with nature and wildlife. They also take advantage of the proximity to Horse Creek and use it for recreational purposes, which further fulfill them spiritually. Some of the headwaters of Horse Creek are on the South Pasture Extension Mine site. If mining occurs upstream and impacts the watershed the way it has everywhere else in the state, all that I have built Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 5 of 16 PageID 922 6 with this business will be jeopardized. My concern is that the mining will continue to destroy habitat and change the conditions that make it possible to allow the species to live in and use these riparian corridors. 14. I take pride in the fact that the people who come to visit our area are able to experience the natural riparian environment in all its beauty and integrity. They are astounded at the surrounding landscape—not just on the property, but also what they see on their drives in. However, I fear that beautiful and scenic drive will now be replaced with a view of phosphate mines if these permits are allowed. What was formerly sweeping vistas of verdant cattle pastures fringed by oak woods or pine flatlands will be replaced by a narrow corridor of bermed walls, and miles of gigantic artificial earthen structures constructed for the storage of clay and chemical wastes. I am concerned that dust clouds and the smell of kerosene will fill the air. I am also concerned that if the berms are ultimately removed, the cattle pastures and citrus groves of former times will be transformed into vast tracts of cogon grass— a coarse Asian grass which thrives on the disturbed low-grade soils that characterize formerly mined lands, is unsuitable for cattle forage and has no place in the natural landscape. I am concerned that the clay and chemical wastes containments will remain for lifetimes as a dangerous liability. 15. The integrity of our business is based on the spiritual fulfillment of being in an intact web of nature, being integrated into nature on my property. I’ve witnessed this time and again. People come here seeking sanctuary or refuge from the hustle and bustle and life. Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 6 of 16 PageID 923 7 16. I am also concerned the impacts to the watershed and wildlife will harm my appreciation of the aesthetics of the area, and the spiritual fulfillment I get from living in and recreating in nature. In addition to using my property as a business, in its current state with a healthy Horse Creek and abundant wildlife, I regularly canoe, kayak, swim, and fish in Horse Creek. As Horse Creek makes up the eastern boundary of my property, I visit it daily. I maintain trails and pathways along the creek and look for the opportunity to experience wildlife daily. 17. I also enjoy taking pictures of wildlife on my property. This is a photograph of an alligator I took – one of the many that frequent the ponds on our property. Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 7 of 16 PageID 924 8 18. This is a photograph of a barred owl. This photograph of a barred owl was taken on our property in a cypress tree overlooking Horse Creek. 19. I am deeply concerned about maintaining the normal hydroperiods of Horse Creek. Since the Altman and Manson-Jenkins phosphate mine tracts opened about 15 miles to the north in the upper Horse Creek watershed, natural, historic flooding has not occurred in the watershed. We haven’t seen a major flood since 2003, and in the 10 years prior to that we had six high flood events. Now it seems the floodplain does not go out as far or stay up as long. It appears that in the last decade, phosphate mining has altered the water cycles. We feel Horse Creek has already been impacted by phosphate mining. If all Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 8 of 16 PageID 925 9 the mines that were projected for the Horse Creek watershed were brought on line at the same time, my understanding is that we would lose 15 percent of the water according to the Corps’ own analysis in the Areawide Environmental Impact Statement. That would make dry season drier. I fear that with more mining, Horse Creek could soon be reduced to nothing but a trickle. I am concerned that phosphate mining has already permanently affected the water levels and things will continue to get worse. 20. Wild life and plant life are dependent on the natural floodplains to flourish. Many plant species depend on periodic inundation to thrive. Their survival passes up the food chain to larger and more complex species. I am concerned that mining would affect the hydroperiod in a way that would negatively impact the natural wildlife and plants in the watershed and where I live. 21. It is truly a joy to live where I do, in a rural area, surrounded by open space and agriculture. I have seen many endangered species on our property and nearby. For example, I have observed (seen or heard) Florida panther on six occasions, and have recorded an additional six probable sightings. I feel the survival of the Florida panther as a species is dependent on the intact natural environment, and any encounter I’ve had a panther in the wild has left me feeling inspired, awestruck, and incredibly privileged because most people will go through their entire lives and never lay eyes on one of these rare animals. 22. My first sighting took place only months after I moved onto the property in 1994. The panther was sitting in plain view in the middle of the road just inside our gate. When a truck appeared he sprung from his haunches at least 20 feet, landed in a patch of Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 9 of 16 PageID 926 10 palmettos, and disappeared. One evening a few years later, my attention was drawn to the sound of disturbed crows who had set up a raucous chorus in the woods near our cabins. I noticed the crows were all gathered in the upper branches of a large, sprawling oak tree, and when I searched the tree with my eyes to see what was arousing the crows I suddenly realized I was looking right into the face of a panther who was looking warily at me. I diverted my eyes momentarily to see if my pet cat was in the vicinity, and the moment I broke eye contact the panther scrambled down one of the main limbs of the tree (I could hear his claws in the bark) and sprang from about 10 feet above the ground and again instantaneously disappeared in the palmettos. 23. In the summer of 2002, in the middle of the day when biking one of our shell- topped roads in the woods, I came up behind what I thought at first was a stray hunting dog because of his tawny color. But when he sensed me, he turned his body to look behind, and I realized I was looking at a very lean adult panther. I could see his profile quite perfectly—a long thick tail with a curlicue on the end. He trotted off the road quite nonchalantly and again disappeared in the thicket. 24. Another time in the evening, as my wife and I just left the woods and stepped onto our road, we encountered a juvenile panther who stood stark still when he saw us, as did we. We both stopped and got down, as did the panther, and we remained like that for what seemed like minutes before the panther began to turn around nervously. At that we stood up, and he fled at blinding speed in long leaps and bounds. 25. One morning in spring 2013, my wife and I were walking with two clients around our pond when two panthers appeared. They were clearly panthers by their size, color, Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 10 of 16 PageID 927 11 and long tails. They paused momentarily to appraise us, then disappeared into the thicket. A few years prior to that I caught a brief glimpse of a panther at dusk in back of the same pond. He disappeared behind a bush and never emerged. 26. At the end of January 2014, I found what appeared to be a panther paw print in the muddy shoreline of Horse Creek. I poured a plaster cast using drywall joint compound and covered the track with a bucket which I weighted down, as the weather was rainy. The creek rose and fell several times, so it was March before I was able to move the bucket and dig a clump of earth around the print, which I took to my garage to dry. Another month later I knocked the dirt off the cast and revealed the paw print. Based on print’s size, appearance, and location - near the Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 11 of 16 PageID 928 12 vicinity of where we had sited panthers previously and around what appeared to be panther scats and scrapes – I believe it is a panther paw print. 27. Clearly, I am very concerned about the survival of the Florida panther and the Corps’ and Service’s failure to analyze the impacts of mining on it. Florida panthers are struggling for survival in their remaining habitat. Based on my experiences and what I have heard from neighbors in the area, I believe that there may even be a breeding population in the area. The number of sightings would support that, and it is not unusual to see them in the area. They’ve been seen in pairs, which either means they are mom and cub, siblings, or a breeding pair. I am extremely concerned and think these lands in the phosphate district could and possibly do support panthers. They depend on expanding habitat for breeding and feeding, while much of their habitat is being lost to development and industry. Phosphate mining on these lands that they use could destroy their last chance at long-term survival. 28. In addition to Florida panthers, I have seen several six-to-eight-foot-long eastern indigo snakes. In our early days living on our property, one of these large snakes was seen time and time again on various parts of our property. He disappeared after Hurricane Charlie in 2004. I saw another as recently as 2014 prowling around my office building. These indigos are magnificent snakes, and simply to behold one in the wild is the experience of a lifetime. They are of an iridescent blackness. I am concerned because I don’t see how they could possibly continue to live on mined land as Mosaic, the Corps, and the Service seem to believe. Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 12 of 16 PageID 929 13 29. I also see crested caracaras from my property almost daily. The caracara is a magnificent bird with a black crest and an ivory-colored collar around its neck. We often see them in the company of vultures or sitting on fence posts by the side of the road. They are not the gleaming white of the bald eagles, but their presence is astounding. I am concerned about caracaras because they depend on a certain amount of isolation and carrion to eat. I am worried they could become even more endangered as a result of the extreme, radical, traumatic effects phosphate mining will have on the area. 30. In addition to imperiled species like panthers, eastern indigos, and caracaras, I also see swallowtail kites, egrets, limpkins, spoonbills, sandhill cranes, anhingas, various types of herons, curlews, and black bellied whistling ducks from my property. The wildlife is still intact here for now, but the devastating impacts of phosphate mining on their habitat and on the hydroperiods of Horse Creek are only going to cause their health and numbers to deteriorate. 31. My enjoyment of recreational activities in these watersheds depends on the presence of species and their habitats. When you see a living creature like a bird or panther it is a total awakening. It is a different kind of experience of nature when you see a creature in nature that has eyes or a mouth, like we humans do. That’s the real, connected link. When you actually see a living creature like a bird, reptile, or mammal it is a new awakening, a new connection with nature. It is different than seeing animals at a zoo. When you are in nature, you have to be quiet, still, and integrated into the web of life. That’s when enchanting things happen. Just to see wildlife in the wild, you have to be in a transcendental state. Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 13 of 16 PageID 930 14 32. I believe that all species have a right to live, and that we have a moral duty to protect all forms of life. Wildlife in the wild enhances our relationship with nature. We need not only fresh air and open space but also the possibility of total immersion in nature without human intervention. We have a moral duty to make life wonderful for every species that inhabits the planet, not just humans, and not just Horse Creek. I am concerned that even more species will become endangered if their habitat is destroyed by phosphate mining. 33. A protected natural environment is the core of my business, but it is also where I find my personal spiritual fulfillment. I heal in nature, where the wildlife is safe, alone, and unmolested by crowds of people or industrial destruction. It is a total awakening when you see a living, wild creature in this peaceful and isolated environment. When you stay quiet and sit still and become a part of their world—that is the real connecting link, that is a true connection with nature. That is where I find true relaxation and relief from everyday life, and I find spiritual fulfillment by being in the bosom of nature. 34. In addition to the South Pasture Extension Mine to the north, the Wingate Mine and proposed Wingate East mine are 15 miles to the north, and the proposed DeSoto Mine would be 10 miles to the south. I am concerned about the cumulative effect of all of this mining on wildlife, habitat, and waterways. 35. I canoe and boat in Charlotte Harbor, at the mouth of the Peace River, which will be impacted by more phosphate mining. I use Tampa Bay as a wonderful recreational and spiritual resource, and I am concerned that additions to the phosphogypsum stacks at the Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 14 of 16 PageID 931 15 Riverview and New Wales facilities along the Alafia could breach, as they have in the past, and negatively impact that valuable resource. 36. I believe that the Corps’ decision to allow the proposed phosphate mining is impermissible. The Corps has failed the public by not taking a stand against phosphate mining and therefore not protecting the public interest. I feel that the Corps has failed the people of Florida by accepting hands-down the vision of the phosphate mining district extending unimpeded all the way from Lakeland to Arcadia and beyond, as well as mines in Manatee County. I feel the phosphate ore should be left undeveloped and in the ground where it was naturally deposited by nature. Ultimately, over the decades, I think it would be worth more like that than it would ravaged by strip mining. 37. I would have expected that most of this land, at least 60,000 acres in DeSoto and Hardee Counties, would be acquired into the public domain. This expectation is based on my observations that the vast majority of phosphate lands are of little value once they have been strip-mined for phosphate. This is certainly the case in my native Polk County where about 250,000 acres are currently lying useless; whereas if this land were still in its natural state it could become an eco-tourist attraction and provide a perennial source of income to the county as such, as opposed to the blighted and abandoned post-mining landscape we see in the counties to our north, like Hillsborough and Polk. I understand that the panther population of south Florida could expand if there were more preserved tracts and corridors north of the Caloosahatchee River. 38. I vehemently oppose the Corps’ decision to ignore the obvious connection (direct and indirect impacts) between the mining of phosphate and the processing facilities Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 15 of 16 PageID 932 Case 8:17-cv-00618-SDM-MAP Document 61-4 Filed 06/30/17 Page 16 of 16 PageID 933 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF GLENN COMPTON I, Glenn Compton, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I am the chair of ManaSota-88, a 501(c)(3) public health and environmental organization with a history of addressing phosphate mining impacts in Manatee County and nearby regions. I assist the organization in disseminating the newsletters, emails, and Case 8:17-cv-00618-SDM-MAP Document 61-5 Filed 06/30/17 Page 1 of 5 PageID 934 2 educational materials on public health and the environment; coordinate the meetings; and coordinate the board of directors to decide on issue priorities. 3. I am an avid hiker, birder, camper, canoer, and biker who has explored much of Bone Valley, the area of Florida where phosphate mining is most prevalent. I go to state parks almost on a daily basis, and I encounter wildlife almost every day. My backyard abuts Oscar Scherer State Park which provides native habitat for numerous listed species including the Florida Scrub Jay. Being so close to conservation land is important to me, and I have an interest in making sure it is there for future generations. I canoe, camp, hike, and bird watch in Myakka River State Park. I have also spent time clamming, kayaking, fishing, and canoeing in Charlotte Harbor over the last thirty years, and have spent time on the Alafia River and Tampa Bay. All of these water bodies and watersheds are greatly important to me, and any damage done to them will impact me negatively. I am seriously concerned that this area could easily be impacted by additional phosphate mining in the region—all it would take is one break from a clay settling area. 4. Furthermore, a portion of my drinking water comes from the Peace River, which could be impacted by pollution and flow reductions from the phosphate mines. The water quality of the Peace River is potentially threatened because of the ease with which phosphate related wastes can travel. Water pollution from mining water run-off and degradation of the water quality of surface waters are very possible. Even if all mining presently permitted and proposed for the Peace River watershed goes according to plan with no unexpected problems or deliberate permit violations, I believe water quality will still be degraded because of run-off from mining tracts and discharges to surface and Case 8:17-cv-00618-SDM-MAP Document 61-5 Filed 06/30/17 Page 2 of 5 PageID 935 3 groundwater. There is no way these harmful effects can be avoided if phosphate strip mining occurs. 5. I am also deeply concerned about the Corps’ decision to approve phosphate mines because it will ruin the biodiversity in the area by destroying the habitats they need to survive. There is a long, troubling history of phosphate mining’s impact on species biodiversity. Even before mining begins, the hydrology is changed when all vegetation is stripped from the mining area, natural flow patterns and storage capacities are demolished, as are natural recharge areas. Mining destroys natural watersheds and the natural order of the soil’s layers from top to bottom of the mined-out zone. Topsoils are obliterated, breaking up the water-holding hard pan underlying the area. Mining so changes soil profiles and land contours as to permanently alter surface drainage patterns. Reclamation cannot restore these systems. 6. There will be a reduction in the overall area of wildlife habitat as phosphate strip mining progresses. A significant percentage (30% to 45%) of phosphate mine sites is utilized as clay settling areas (toxic slime ponds) with an active life of 10 to 15 years. There will be significant unallowable, foreseeable, adverse cumulative impacts affecting fish, wildlife, listed species and their habitats; hydrologic conditions and water quality; and fishing and recreation at the mine sites and downstream. 7. Biodiversity has inherent value. There is strength in diversity in the environment, in plant life and animal life. If we lose that diversity, we will lose something that is unique to Florida and to this region. I am concerned about the effect phosphate mining Case 8:17-cv-00618-SDM-MAP Document 61-5 Filed 06/30/17 Page 3 of 5 PageID 936 4 will have on the biodiversity of central and southwest Florida, especially at the rapid rate phosphate mining is expanding. 8. Many species will be threatened with extinction when their habitats are destroyed by the acceleration of phosphate mining. One such example is the Florida scrub jay. Any further decline in the scrub jay population places the scrub jay at greater risk of extinction. As a birder, I would like to see habitat protected—not mined—so that our migratory birds’ routes are not interfered with. 9. The habitats destroyed by phosphate mining do not have time to recover before more is taken away. In my extensive travels throughout Bone Valley, I have seen firsthand the loss of habitat that has occurred from phosphate mining. There were times when I was in a dust storm where you could not see a couple feet in front of you. This dust from the phosphate mines is filled with pollutants and I believe those pollutants will lead to increased radiation levels. This will impact not only my physical health but also my happiness and well-being. 10. Moreover, phosphate mining is growing at an unsustainable rate. The depletion of this non-renewable resource will result in serious economic and national security problems for the United States. By most estimates, it will be approximately 30 years before we run out of phosphate ore that can be profitably mined. As a matter of national policy, it seems strategically reckless to continue to deplete the nation’s very limited phosphate resources. 11. My environmental activism is directly related to my spiritual beliefs. The loss of the aesthetic value of habitat due to phosphate mining would have a negative impact on Case 8:17-cv-00618-SDM-MAP Document 61-5 Filed 06/30/17 Page 4 of 5 PageID 937 5 my spirituality. I believe the Corps’ decision to allow the proposed phosphate mining is a mistake: both the mining at the South Pasture Extension Mine, and the mining considered but not yet permitted in the Areawide Environmental Impact Statement. My concern is that the Corps is approving phosphate mines in a piecemeal manner without reviewing the full impact of all of the mining, processing, and waste disposal across the state. I am concerned about the future of the public’s health, the environment, and the wildlife, specifically endangered species and their habitats. 12. The Corps’ and Service’s actions and omissions are harming ManaSota-88, myself, and ManaSota-88’s members. We rely on the Court to remedy these harms. I declare under penalty of perjury that the foregoing is true and correct and was executed on June 21, 2017, in Nokomis, Florida. ________________________ Glenn Compton Case 8:17-cv-00618-SDM-MAP Document 61-5 Filed 06/30/17 Page 5 of 5 PageID 938 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF HENRY JOSEPH KUHLMAN I, Henry Joseph Kuhlman, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I am a retired airline pilot. I spent 44 years in aviation, first in the military as an Air Force pilot and then as a career international airplane pilot. I have been all over the world, to all seven continents, and I have seen a great deal. My experience as a pilot has Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 1 of 11 PageID 939 2 made me keenly aware of what is going on in the environment. After I retired, I purchased several properties in Hardee County so that I could live in a rural setting in west-central Florida. I keep my private airplane at the Wauchula airport, and I fly around Hardee County on occasion. 3. I became involved as a member of People for Protecting Peace River (“3PR”) about five years ago, after witnessing firsthand from the sky the desolate land left behind by phosphate mines. I attend 3PR’s events, submit letters, and interact with other members. 3PR is the group most involved in monitoring phosphate mining in this area, and I rely on them to represent my interest in conserving these lands and waters; and the endangered species and their habitats in the area. 4. I did not understand when moving here what the phosphate mining industry was doing to the environment until I flew over their mines in Hardee and Polk counties. Unless you see these mines from an aerial perspective, it is difficult to understand the extent and depth of the permanent destruction. In the air, you can see the massive clay settling areas, also known as “slime pits,” which are in almost one mile square sections and extend many miles. I understand that these slime pits stay on the land indefinitely because they contain concentrated hazardous waste and have few productive uses. In my opinion, vast areas of my county lie devoid of roads, people, natural habitat and economic production because of the phosphate industry. What is left are pocked and unnatural wastelands of nothingness that 99% of the population never see from the ground. Fifteen square mile chunks of land (the average sized mine) are relegated to nothingness with each new mine. Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 2 of 11 PageID 940 3 5. After becoming aware of phosphate mining, I took it upon myself to learn about how our government processes work. I have even attended seminars in Tallahassee to learn about public records law, ethics laws, the sunshine law, comprehensive plans, and more. My goal was to understand the interaction between Hardee County, phosphate mining, and the money that flows through this county. I am worried that the phosphate mining industry has corrupted public officials and others that should have prevented phosphate mining from occurring. 6. I am deeply concerned about phosphate mining because I believe its effects are permanent, and the damage can never be undone. The history of phosphate mining in Florida is nearly a hundred years old, and it is easy to see what the effects have been when you fly over it. Regulators should be required fly over the mined land in Polk and Hardee counties at lower altitudes, to see the damage done by their predecessors that allowed incremental additions of one mine next to another. Now, there are vast empty spaces of choppy discarded remnants where past strip mining companies walked away from their mines after they removed the phosphate. In my opinion, reclamation is a joke. The reclaimed land is never brought back to production or close to the way it was. It is mostly devoid of life. During the rainy season you can see how the mined land is wet, soggy and lower than surrounding non-mined land. It does not appear to drain as well as native landscapes. I believe that is because the phosphate companies mined out the phosphate ore – which makes up at least 25% of the land - and shipped it away in railroad cars. What’s left are holes full of water with contoured margins that the phosphate industry likes to say looks like parks; or giant square sumps like Clay Settling Areas that Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 3 of 11 PageID 941 4 don’t drain. That’s what I see from more recently reclaimed land when I fly. Older land is cut up like the Badlands of South Dakota and just left there to rot. Mosaic made Streamsong Golf Resort next to some land like that. None of the areas I see from the air created by mining companies pre or post 1975 can be fixed. It appears nothing is growing but weeds. Most of the infrastructure that was there before the mines is now gone. A high percentage of the public have no idea what is on the other side of the berms Mosaic puts along roads. 7. It is also easy to determine what phosphate mining has done through analysis of the statistics and data available. I have reviewed the Hardee County property appraiser’s website which has an aerial map feature that shows parcels. I learned that Mosaic owns almost one third of Hardee County. Much of the land Mosaic owns in Hardee County is under consideration for mining permits. Mosaic owns land with orange groves that has never been mined. It is valued at about $7,000 per acre. Mosaic owns the land waiting to be mined inside the South Pasture Mine Extension permit area, It appears they have let agricultural production decline, the appraisal values have dropped off compared to healthier parts of the County. Mosaic mined land with no ponds or slime pits is as high as $4,700 per acre. Most of Mosaic mined out land is clay settling areas and messed up pits that are valued at $1300 - $2,000 per acre. Polk County has 250,000 acres of land like this that the phosphate companies left them deal with. I don’t want this for my county. 8. I do not understand how the Corps has allowed this to occur and continues to allow it. I believe the Corps is ignoring history and turning a blind eye to the absolute Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 4 of 11 PageID 942 5 destruction that has occurred as a result of phosphate mining in the region. The incremental, piecemeal development of mining is what got us into this morass. 9. I am specifically concerned about the South Pasture Extension Mine because the phosphoric ore from the mine will be processed two miles from where I live at the benefaction plant. Here, they separate the ore and create the sand and clay mixed with reagents to pump back into the holes. I live less than three miles north of the northern boundary of the South Pasture Extension Mine. 10. I purchased my 40-acre property in 2007 and finished building my home in 2009. I moved to this area to retire to a rural setting. I was told they were finished mining in my area, yet in 2010 the County put a Mining Overlay on top of thousands more acres around my home that was mostly privately owned land. A Mining Overlay indicates that the land will be mined someday – it was shocking to me that they would reverse course. It is just devastating. Payne Creek goes right through my property and winds around before joining the Peace River just south of Bowling Green. 11. Mining has occurred upstream of Payne Creek in the past. I am concerned that Mosaic may occasionally dump pollutants in the creek because I have already had an incident occur on my property when the water running from the creek changed from a healthy brown, coffee color to crystal clear. I found out from the Department of Environmental Protection that Mosaic had been treating aquatic plants with a herbicide, and their water had been released into the creek. I was told that it would not happen again, but I am fearful that those incidents are recurrent. Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 5 of 11 PageID 943 6 12. I am also concerned about the existence of and expansion of the phosphogypsum stacks around Florida. The additional mining will necessitate the creation of additional phosphogypsum which will be stored at gypstacks, including the New Wales gypstack which is about 12 miles from my house. I found out after the Mosaic New Wales sinkhole in August 2016, that the water test they did of my water shows 10.2 of alpha radiation level of radioactivity. My neighbors had no idea there was radioactivity in our water and they have small children. I worry for them. They are especially vulnerable because they feel like they can’t say anything because they work at the mines. 13. In addition to the 40-acre parcel I live on, I also own two additional 10-acre parcels. One of my parcels is in the middle of the 2010 mining overlay in Fort Green. The second 10 acre parcel is east of Wauchula in the path of Mosaic’s South Fort Meade Extension mine. I have cows that I tend as a small-scale rancher. Although this is not my primary source of income, I contribute to the long history of cattle production in central Florida. Mining destroys beef production indefinitely on the 40-60% of mined land that ends up in Clay Settling Areas. Reclaimed mined land into pasture is damaged because the top 15-20 feet of top soil and natural hydrology is destroyed. The land does not support healthy pasture like non-mined land. Noxious forage (cogon grass) and poor drainage is the norm. The number of acres required per animal is well above that for natural pasture. 14. I moved to this area because I enjoy the outdoors and rural lifestyle. I enjoy being in nature almost daily. I spend a lot of time outside, whether I am fishing, bird watching, hiking, tending to my cattle, riding my off-road vehicle, or participating in outdoor clubs Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 6 of 11 PageID 944 7 or associations. I have a camper, and I enjoy staying at the state parks and taking part in everything that Florida has to offer outdoors. 15. Phosphate mining is the antithesis of everything I had hoped to enjoy in my retirement. I moved here for the rural, quiet, natural country life. Nothing about phosphate mining is natural, rural, or temporary. I do not believe that phosphate mining does any good for me or anyone else in the County in the long run, and I do not want the government to allow my backyard to become a garbage dump. I do not want to look across the road at a 60-foot berm that decreases the value of my property and hides the destruction that lies behind. The beauty of Hardee County has always been driving along country roads next to healthy orange trees, pastures with cows, produce farms, houses with families and a sense of community. Mining takes all of this away forever. Even the roads are gone, replaced by vast emptiness and No Trespass signs. 16. I am also worried about the wildlife. The animals have a right to live in their natural habitat. The protected species are protected for a reason—their populations are under pressure because of human activity. I believe that expanding the mines could result in protected species, like crested caracara, wood stork, and eastern indigo snakes, going extinct from this earth. Everything living is removed and discarded from the mined land. The bulldozers scrape off the vegetation, burrows and animals. I am not aware of any active programs for removing any animals from land that Mosaic mines (with the possible exception of some gopher tortoises and scrub jays). It is my understanding that when they begin digging for the phosphate, most of the top soil and over burden in the upper 15 feet (with all of the microorganisms in the topsoil) is dumped back into the Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 7 of 11 PageID 945 8 bottom of the fifty to sixty foot deep mine pit next to the active cut. It is the complete and total destruction of thousands of acres at a time. I wonder how animals could not be going extinct after what they do to the land. Mining destroys the habitat, the balance of nature and the ability for Florida’s native plants and animals to recover from sixty feet of layered earth being slurried and mixed with reagents. The result has been invasive plants and the decline of native plants and animals for nothing more than temporary jobs and corporate profits. Mosaic owns, and I assume, intends to mine 40% of Hardee County or about 255 square miles. Much of that mining has almost cut the County in half. This has severed some wildlife movement corridors. No agency seems to care about this and the extinctions being accelerated by senseless strip mining. This worries me deeply. 17. I know that phosphate mining is not temporary because I have seen what their draglines do, been to their benefaction plant, and taken a tour of the showcased manicured reclamation site that mining companies show visitors. I have also talked to many mining employees that give a different story altogether. And my small airplane allows me to see what is otherwise hidden from the public. When phosphate mining digs down sixty feet, it destroys the hydrology. Approximately 25% of the earth is shipped off in railroad cars and the rest pumped back in water slurry to the pits. They fill up the empty pits with this sand, clay and reagents left over after the phosphate is removed at the benefaction plant. It’s easy to see once the pits are full and dewatered that the land is lower and uneven. I do not believe the land is the same or that the habitat is the same. The mining process is invasive. I do not believe that the phosphate mining company is being held to a time table to reclaim the land, so they delay taking care of it to minimize Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 8 of 11 PageID 946 9 their costs. It appears to be a strategy of Mosaic to extend their mines instead of closing them so that the indefinite delays can forestall reclamation. The standards required for release from reclamation are so low that land with nearly no economic value is routinely approved as reclaimed. The property appraisal values show the mined land is worth far less than it was before mining. I haven’t found any examples of mined land in Hardee County ever growing crops like oranges and produce again. Considering the tens of thousands of acres mined out, this has been a huge loss of economic income and future production to our county. 18. Since 2011, I have spent a great deal of time fighting public corruption in Hardee County. I think that phosphate mining cannot exist or persist without public corruption. I think that phosphate mining relies upon well-oiled public officials, prodigious amounts of money that is fed into the political system, and well-placed jobs given to particular people. An honest, reasonable, educated, knowledgeable public official that does his due diligence could not and would not ever authorize the South Pasture Extension mine. I believe it would be impossible. I saw this personally in 2010 when Hardee County Commissioners (two with sizable business conflicts with mining companies) approved a mining overlay land use designation for thousands of acres on top of private property in Hardee County. They did this without the permission of the land owners. They also changed the Land Use Designation for about ten thousand acres of mostly mined out land from Agricultural to Industrial with some Commercial. Mining companies knew full well they destroyed the agricultural future of their land and corrupt public officials made it easy to change their land into dumping grounds. The County tried repeatedly to bring Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 9 of 11 PageID 947 10 imported garbage for dumping into a regional land fill located on mined out land. Imagine a county of 24,000 residents, over 50% low income, and 12% of workers employed in local government receiving $8,000,000 in mining cash every year to be used by two local Boards for whatever they want. Each of those Boards have Mosaic employees as voting members appointed by county commissioners. 19. The continuation of mining to the South Pasture Extension will increase the cumulative footprint. Phosphate mines are like a cancerous mass. They do not take chunks of land here and there; but instead, they grow like a cancer, adding on so-called “extensions” to existing mines. I believe that Mosaic also plans to mine the area over Fort Green and north of the South Pasture Mine where the mining overlay was placed in 2010. They are still buying farm land. They buy what they want to mine later. 20. I do not think the phosphate mining company cares about their impacts to our water resources. I believe they care about one thing: getting the phosphate out of the ground to make money. There second goal is to spend as little as possible on reclamation and extend these costs as far out in the future as possible. I believe that the cost-benefit of mining is immoral. The mining company hides behind public relations misnomers and corrupt public officials that will not answer to the people. Most regulation is done behind closed doors in mining financed local government offices. The government of Hardee County works corruptly in my opinion with mining interests to keep money flowing to insiders in trade for unfettered mining, contrary to the benefit of the public. I believe the mining company’s only interest after removing the ore is minimizing further expenses, Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 10 of 11 PageID 948 11 like the reclamation process. Return on investment is the bottom line for this large company with mining operations in 20 countries. 21. I have little faith in the Corps to properly analyze the impacts of phosphate mining because the Corps should be looking at these mines’ impacts cumulatively. The Corps should not look at this permit in isolation. After all, the South Pasture Extension Mine is called an “extension”; it is an extension of the existing mines (South Pasture and West Pasture mines). Like a cancer, each approval grows the mines and continues to negatively impact the people, the animals, the roads, and the infrastructure. The Corps failed the people by treating the impacts of the mines incrementally which added this mine to the 250,000 acres of wasteland it connects to in Polk County. The Hardee County Commissioners just approved the first Clay Settling Area for that mine the South Fort Meade Mine Extension, in Hardee County! Bite by bite, the Corp is allowing mining to eat the future of our beautiful central Florida. I declare under penalty of perjury that the foregoing is true and correct and was executed on June 21, 2017, in Bowling Green, Florida. ________________________________ Henry Joseph Kuhlman Case 8:17-cv-00618-SDM-MAP Document 61-6 Filed 06/30/17 Page 11 of 11 PageID 949 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF HUGH BRACEY RICHARDSON I, Hugh Bracey Richardson, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I have been a member of People for Protecting Peace River (“3PR”) for about two years. As a member of 3PR, I attend the meetings and give the organization financial support. Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 1 of 11 PageID 950 2 3. I became a member of the 3PR because I am deeply concerned about our environment. 4. I am concerned about the Army Corps’ decision to approve additional phosphate mines in Florida. I see the continuation of strip mining to be detrimental to the future of this state. I believe it is contrary to the public interest and to my personal interest, in particular, as I live in close proximity to the South Pasture Extension Mine which would only be buffered by the Ona Mine and the Ona Mine will be directly across the street from me if it is dug. I believe I will be impacted by decreased air and water quality, increased noise pollution, decreased property value, and that I will experience and observe negative impacts to local waterways and species, all of which will harm my interests. 5. My wife and I own 10 acres of property, a large part being wetland, directly abutting the southern side of the proposed Ona Mine, which directly abuts the southern side of the South Pasture Extension Mine. We bought this land in 2011 and built our home here in 2014. My concerns are that the wetland area we love will be negatively impacted by the phosphate mines, that we will lose our groundwater wells through depletion or contamination, that there will be negative impacts to the species that rely on habitat on our property, and that our air quality will be affected by increased dust and exhaust gases. 6. We have two wells on our property. One is shallow for irrigation and the other is deep for drinking and personal use. I am concerned that the phosphate mines’ use of the water in the area might impact our well water by diminishing the water’s quality and Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 2 of 11 PageID 951 3 quantity, and that the digging of the mines themselves would affect the watershed, wetlands, and how waters flow in the area. I am especially concerned about the phosphate mines’ use of water and its impact on the formation of sinkholes and the introduction of radioactive contaminants into the Floridan aquifer. This is not a hypothetical concern – it is very real as we all know. Florida is a very fragile environment and phosphate mining exponentially threats it. 7. We bought this property because of the wetland and species on it. We enjoy the presence of the animals daily, and encourage them to use the property as a safe haven. If encroachment of mining causes these animals to not want to come to our property because of lack of water, clean air, or noise because of mining operations, our experience would be degraded and our enjoyment of life on our property would be greatly reduced. 8. There are multiple species that would be impacted by phosphate mining on my property. In fact, that’s one of the things we love about the area. We regularly see deer, raccoons, fox, and turtles. Numerous varieties of birds enjoy the protection of the property. We even have a pair of sandhill cranes that have taken up residence on the property. 9. It brings a lot of joy to my existence to live here with all this wildlife. Each year the pair of sandhill cranes produce one or two offspring. We enjoy watching those baby birds grow to maturity, and in the sad event that they lose the child, we commiserate with them. While I see deer fairly often, I really enjoy spotting unusual animals that may come on the property. Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 3 of 11 PageID 952 4 10. I enjoy seeing these species and this habitat daily. It is right here on my property, for now. One of my passions is photography. I enjoy wildlife photography and I try to get close up to the animals and their natural habitat, which I can do fairly well on the property. I’ve taken great photos of gopher tortoise, alligators, roseate spoonbills, and sandhill crane. Myriad critters enjoy the protection of our open area. It is one of the reasons we moved here. 11. Here is a photo I took on my property of roseate spoonbills. These beautiful birds visit our property for a few days and then move on. They seem to like the wetland area and visit when the marsh is full. I am concerned that the nearby Ona and South Pasture Extension Mines will impact the hydrology on my property and make it less likely I’ll see these amazing creatures on my property. Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 4 of 11 PageID 953 5 12. Here is a photo I took on my property of whistling ducks sitting on an oak tree limb. These colorful ducks visit the property in large numbers, more than 100 at a time. They have raised numerous offspring on the property. I am worried that the construction and operation of the phosphate mines will negatively impact these ducks and make it less likely that they will visit my property. Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 5 of 11 PageID 954 6 13. Here’s a photo of a Sherman’s fox squirrel I took on my property – it was an unusual sighting. He was there for a few months and then moved on. We have not seen another since and worry that this might be due to loss of available nearby habitat. Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 6 of 11 PageID 955 7 14. This is a photo I took on my property of a large soft-shell turtle. These large lumbering creatures cross our property looking for water. They bury their eggs out in open ground. Scarcity of water is a monumental problem for them. I fear the nearby phosphate mines will only worsen that problem. Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 7 of 11 PageID 956 8 15. This is a photo I took on my property of sandhill cranes and a deer up near the marsh. It was a beautiful sight and epitomizes the Garden of Eden feel I so much enjoy about our property. I am concerned that the nearby mines will chase these creatures away, between the enormous loss of habitat north of us and potential impacts to hydrology on our property. 16. Even if I can’t physically see these animals enjoying the property they currently reside upon, it affects me emotionally and aesthetically that they would be deprived of that because of encroaching phosphate mines. It seems contrary to what people should be doing as shepherds of the earth. Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 8 of 11 PageID 957 9 17. I believe that humans, being the allegedly intelligent creature on earth, owe to other species a valid right to live and to be in as much peace as they can be. I think if people have a firm belief in God providing humans with the ability to be a shepherd to other animals that this should be one of the foremost guides as to how they interact with nature. 18. I believe that all species have a right to live. The loss of any animal by impact of humans to their habitat is an affront to our existence as humans and as part of the ecosystem. The rate of loss of species on our planet is ludicrous and should be addressed immediately. Phosphate mining will only make it worse. It took millions of years for species to become what they are and to have them extinguished in the blink of an eye is an affront to my moral values. 19. If the South Pasture Extension Mine and Ona Mine were constructed, it would impact my ability to take interesting photos of wildlife here on my property and in the surrounding area because the mines would devastate thousands of acres directly north of me. 20. If aesthetic, water, and air pollution concerns become so bad that it comes to the point that we need to sell this property, the mines are certainly going to have a detrimental effect on our property value. Right now it is rural with wetlands and species that come on to the property. Having a phosphate mine in immediate proximity will drastically reduce the desirability of the property. That would have a drastic effect on the property’s value. Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 9 of 11 PageID 958 10 21. We live extremely close to Brushy Creek and are a part of the watershed. When it rains, we’re part of the river. The north end of our property touches Highway 64, and the Ona Mine would be just across the street and the South Pasture Extension Mine would be directly north of that. The east side of our property is a natural water runoff, and the north end is 4 acres of wetland. When it rains, the water accumulates in the wetland and begins to runoff toward the southeast. If there were a mine just north of us, I fear whatever water and waste accumulates in the process would runoff on to our property, across our wetland, and then on to Brushy Creek and ultimately Peace River. 22. I have been on the Peace River a few times, and believe that phosphate mining will be a detriment to the water in terms of both flow and contamination, with various, probably toxic materials. If animals use the area that is going to be strip mined, either in their migratory patterns, in laying eggs, and things of that nature, and that habitat is removed, they’ll cease to exist in the area. My enjoyment of the property is just sitting with a cup of coffee and binoculars and observing birds and other creatures that come on to my property This enjoyment would be diminished and I would be harmed if mining caused them to disappear. 23. I am interested and invested in the overall wellbeing of the citizens of Hardee County. It is a nice place to live with great potential, but if the Peace River is impacted by additional mining operations either through reduction of quantity or quality of water through the process, it would be detrimental to the existence of animals as well as plant life in the river and in the watershed. The community here could in many ways, cease to Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 10 of 11 PageID 959 Case 8:17-cv-00618-SDM-MAP Document 61-7 Filed 06/30/17 Page 11 of 11 PageID 960 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF KRISTIE LYNN SIMPSON I, Kristie Lynn Simpson, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge, and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I have an associate’s degree in science and I am a retired Registered Nurse. I have been a member of Suncoast Waterkeeper for one year. I have financially contributed to Suncoast Waterkeeper to further its work in opposition to phosphate mining. I receive regular communications from Suncoast Waterkeeper and its members regarding developments and Case 8:17-cv-00618-SDM-MAP Document 61-8 Filed 06/30/17 Page 1 of 8 PageID 961 2 information on phosphate mining. I rely on Suncoast Waterkeeper to represent my interests in conservation. 3. I own 10.5 acres in Lithia, Florida, where I have lived since 2004. When I first moved to Lithia, I did not realize I was so close to Mosaic’s New Wales fertilizer plant. I believe that the mining operations that are at issue in this lawsuit will ship some of their phosphate to the New Wales Plant to be processed into fertilizer and that that will generate more phosphogypsum that will be stored at the New Wales phosphogypsum stacks, at a ratio of five tons of phosphogypsum for every one ton of phosphoric acid produced. I already consider these stacks to be unsafe and harmful to the people and plants and animals that live nearby, including because of their history of forming sinkholes, which have formed since I’ve lived here. 4. The sinkholes dump unimaginable quantities of poisoned water into the aquifer where it can travel far and wide. I live 6.43 miles away from where the south sinkhole formed in one of Mosaic’s New Wales gypstacks, and 5.6 miles from the north sinkhole that formed in a different Mosaic-owned New Wales gypstack. Florida is primarily comprised of limestone, a very soft calcium rock, that reacts and degrades when exposed to the leaking acidic process water Mosaic stores and cycles through lakes on top of the phosphogypsum stacks. According to Mosaic consultants’ testimony at a recent Manatee County Commission hearing, the aquifers beneath the New Wales facilities are closer to the surface than elsewhere in the so-called Bone Valley, and this was stated as the reason why sinkholes are occurring there repeatedly. Despite the widespread awareness of this structural vulnerability in the region, Mosaic is not only continuing to store the radioactive waste there but it is Case 8:17-cv-00618-SDM-MAP Document 61-8 Filed 06/30/17 Page 2 of 8 PageID 962 3 allowing the expansion of the stacks fed from mining in other counties. With this knowledge, I feel these are clearly manmade sinkholes dumping radioactive waste in our aquifer. If a terrorist poisoned our water, it would be considered an act of war. I fail to see how this is any different and do not understand how any government agency would allow its people to be exposed to such poison. 5. I rely on and use well water, and since 2016, I have noticed a decrease in the quality of that water. When I shower using the well water, my skin burns and itches. The water smells putrid, like chemicals. After taking a shower, the smell of the water lingers in the bathroom for not just hours but days. On two occasions I have had to hit the shower door to open it abruptly gasping for air as it felt like I was in a gas chamber. I have sent my daughter to live with another family because I am worried about her health. I do not know what is in the water now, and I do not trust the assurances from Mosaic and the Florida Department of Environmental Protection that it is safe. My daughter is 17 years old, and I am concerned that she could experience reproductive problems as well as cancers from the chemicals from the gypstacks via our groundwater. The recent sinkhole sent tons of sulfuric acid and radioactive phosphogypsum into the aquifer, as well as fluorides and heavy metals like arsenic. 6. Mosaic claims that it pumped it all up and out, but it was down there for two weeks before anyone even noticed. One neighbor of mine that always drank our well water recently died of pancreatic cancer, and in the next-door home, the family dog died of pancreatic cancer also. I don’t believe in coincidences like that. My other neighbor who has always drank the water has had multiple tumors. A couple of weeks ago she had a random rib fracture during her work as a Registered Nurse at Lakeland Regional. She is in her 40’s. It Case 8:17-cv-00618-SDM-MAP Document 61-8 Filed 06/30/17 Page 3 of 8 PageID 963 4 really bothers me that no health agency, either county, state or federal, has ever done a thorough epidemiological study on the effects of phosphate mining or phosphogypsum exposure. 7. If you look at my property from an aerial view, you see the veins of the Alafia River flow toward my house. I am concerned that when there is heavy rainfall, the water runoff from the gypstacks flows toward my home and forms a pool on and possibly under my property. I am concerned that the pollutants from New Wales are not just in the well water I use in my home, but in the Alafia River too. One of my employees personally observed that Lithia Springs, a few miles downstream, was choked with a sludge-like material and smelled exactly like my well water. When she was there, the spring was closed. There have been fish kills in the water conveyances that Mosaic uses, presumably to get rid of the millions of pounds of carcinogenic and toxic chemicals produced in the chemical plant. It does this legally by diluting it with groundwater until it meets regulatory standards. The same amount of toxic chemicals, just diluted. The water conveyances, some of which I believe to be old clay settling areas, themselves toxic and radioactive features, all seem to wind up in the Alafia. In a two week period, shortly after the 2016 sinkhole, I heard from friends, bystanders, and law enforcement that two swimmers had experienced seizures in the river and drowned. I don’t know if any autopsies were done, and the last time I spoke with the Sheriff’s Department they claimed there was an ongoing investigation that they could not comment on. I would not swim in that river, or boat in it, if my life depended on it. 8. I have horses on my property that also drink the well water, but the barn well is deeper than my house well, and the water does not have the same smell. My house well is Case 8:17-cv-00618-SDM-MAP Document 61-8 Filed 06/30/17 Page 4 of 8 PageID 964 5 160 feet deep and the barn well is 200 feet. Sometimes, the caretaker of the horses notices an ammonia-type smell, but it is intermittent. I worry about the safety of my horses, cats and dogs as well. I give the smaller animals bottled water for their safety. 9. I am concerned for the wildlife in the area as well. I believe that as the wildlife goes, so go we humans. If the land is poisoning the birds and mammals, we will be poisoned as well. To me, it is insane that we have to justify our love of plentiful and healthy wild species, and see many die before the agencies wake up and decide to take some half-baked actions. We humans evolved in a context of many and diverse species, and we are out of context, physically and spiritually, when those wild animals are being killed. Hundreds of years ago, we feared wild animals, and killed any that threatened us. Today we are dominant, and don’t need to fear anything but ourselves. We need to protect the animals, or we will find ourselves alone in a toxic world, getting sicker and sicker. If the animals are healthy, chances are we will be healthy too. I am concerned that the animals and birds will be harmed by the poisoned water. 10. I am also worried for the gopher tortoise populations that are being moved in order to mine their habitat. The tortoises’ burrows are home to many species in addition to the tortoise. It is wrong to just move the tortoise and abandon their burrows. I understand that gopher tortoises may try to return to their homes after being moved, and I worry that these tortoises will spend their lives trying to get back to the mined lands only to perish short of their goal. Knowing this information breaks my heart and adversely affects my interests. Someone needs to protect the wildlife. When the Corps approves these phosphate mines, it is approving the destruction of thousands of acres of habitat, endangering many species, some Case 8:17-cv-00618-SDM-MAP Document 61-8 Filed 06/30/17 Page 5 of 8 PageID 965 6 of which are threatened, and initiating a stream of toxic waste that will find its way straight into our homes and our bodies. What kind of governmental agency would do that to us? 11. I have gone to the effort of having my water tested multiple times by the Florida Department for Environmental Protection, who brought out a private company to do the testing. I am concerned that they are not taking the testing seriously. FDEP is very political nowadays, as shown by Rick Scott’s demand that they no longer use the term “climate change.” Any agency that just rolls over and does something like that is clearly not going to be giving me an accurate picture of what is in my water. It will either omit tests for certain chemicals, or manipulate the results to assure the public that it has not been letting Mosaic get away with poisoning the whole region. They told me that the tests have come back “normal,” but the smell and physical symptoms I have had concern me. They are not normal. I would like to send my water home with the FDEP officials, and let them live with it for a few weeks. I am not an expert on water testing, but I had tests done at my own expense, which were not consistent with the DEP’s tests. 12. FDEP are the same people who let Mosaic dump over a million pounds of toxic, listed chemicals into my back yard every year, just by diluting it. Are they telling me none of it, absolutely zero, finds its way into my well water? It is beyond belief. I do not believe that the water is safe. I am worried that phosphate mining is going to keep poisoning my backyard. And the Corps is going to be an accomplice to that poisoning, if it authorizes mining on the 51,000 acres in Bone Valley, it will be directly responsible for millions of tons of toxic and hazardous waste imported to my back yard, five miles upstream, and millions of pounds of listed toxic waste that get dumped into the surface waters and ground waters of my Case 8:17-cv-00618-SDM-MAP Document 61-8 Filed 06/30/17 Page 6 of 8 PageID 966 7 neighborhood. To say that this “impacts my interests” is almost a bad joke. It is going to poison and sicken me, my family, and my animals. 13. I believe that the Corps’ approval of phosphate mining is negligent and irresponsible, and that its actions here have harmed and will continue to harm me. I think that the phosphate mining company is trying to play God, but it cannot reverse the harmful impact it has had on the waters and the land. Mosaic advertises itself as the hero of the scrub jay, the world’s foremost reclamation ecologists, as if it is an environmental group. It claims they can put the land, including wetlands and the headwaters of all the region’s rivers and tributaries, back “better than it was.” I am sorry, but I am alarmed by these grandiose and insupportable claims, and really concerned that the local elected officials and the Corps believe any of it. As I understand it, the reclamation law requires that Mosaic spend $5,000 per acre on reclamation. But anyone who has ever had a little work done on their property, as I have, knows that $5,000 will not restore land that has been removed down to 60 feet, and then backfilled, thousands of acres, with a few plants thrown in the ground. Mosaic has done a few showplaces, where they even build bleachers so busloads can be brought through to see how wonderful it is. They have spent millions on those showplaces, tens of millions on the resort, Streamsong, and as I understand it, they have to keep spending millions to keep those places looking healthy. The law says Mosaic must restore the land to some ecological and economic usefulness, but I have yet to hear of any reclaimed land being used for farming or development, without exposing plants, animals and people to fluorosis and radioactivity. 14. I believe in God, and I do not think Mosaic is able to replicate His work in any way. Nor should they claim to be able to do so. I do not believe that the phosphate mining Case 8:17-cv-00618-SDM-MAP Document 61-8 Filed 06/30/17 Page 7 of 8 PageID 967 Case 8:17-cv-00618-SDM-MAP Document 61-8 Filed 06/30/17 Page 8 of 8 PageID 968 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF LORI ANN BURD I, Lori Ann Burd, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge, and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I am the director of the Environmental Health Program at the Center for Biological Diversity (Center). I have been the director of the Center’s Environmental Health Program since 2015. I am also a member of the Center and have been a member of the Center since 2012. Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 1 of 9 PageID 969 2 3. The Center’s mission is to ensure the preservation, protection, and restoration of biodiversity, native species, ecosystems, public lands and water, and public health through science, policy, and environmental law. Based on an understanding that the health and vigor of human societies are closely linked to the condition of the natural environment, the Center works to protect natural resources like air, water, and land and to secure a future for animals and plants hovering on the brink of extinction, for the ecosystems they need to survive, and for the people that interact with, depend on, and cherish these natural resources. The Environmental Health Program is focused on protecting biodiversity and human health from toxic substances. 4. The Center is a membership organization incorporated under the laws of the State of California. It is recognized as a not-for-profit corporation under section 501(c)(3) of the United States Internal Revenue Code. The Center has 58,016 active members across the country, including more than 300 members in Bone Valley, and maintains an office in St. Petersburg, Florida. 5. I am aware of the current lawsuit Center for Biological Diversity, et al., v. U.S. Army Corps of Engineers, et al., No. 8:17-cv-618-SDM-MAP, regarding phosphate mining in Bone Valley. I am well aware of the harms phosphate mining practices cause to the Center’s members and Florida’s environment, including impacts to aquatic and terrestrial wildlife species, aesthetics, recreation, water quality, and cultural resources. In my professional capacity, I am involved in strategic decision making and help set the organization’s priorities as they relate to threats to public health, the environment, and ecosystems from toxic substances, including threats from phosphate mining practices. I have also been involved in Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 2 of 9 PageID 970 3 the Center’s efforts to address harms to the environment, species, and our members from phosphate mining practices in Florida. 6. The Center’s Environmental Health Program, along with its Endangered Species Program, Urban Wildlands Program, and Population and Sustainability Program, is working to help reduce the use of unsustainable mining practices and advocating for sustainable agricultural solutions. The Center also works to inform, educate, and counsel its members and the public on the harm phosphate mining practices inflict on human and species health and the environment. 7. The Center is and has been involved in a series of actions seeking to address the threats posed by ongoing and proposed phosphate mining practices in the state of Florida, including through scientific, legal, and policy mechanisms. In my capacity as director of the Center’s Environmental Health Program, I strive to represent the interests of our members in the areas affected by phosphate mining and am concerned about how these practices are impacting them, their families, and the environment that they enjoy. I am relieved that the Center works on my behalf and on behalf of our membership to enforce the Clean Water Act, National Environmental Policy Act, and Endangered Species Act. I believe the Center’s actions help to reduce impacts to species and the environment from phosphate mining operations, including from associated fertilizer production plants, and to inform the public of the dangers of this industry’s environmentally destructive practices. 8. The interests that the Center seeks to advance as co-plaintiff in this litigation fall squarely within the Center’s mission. The Center believes that the federal government and private actors must comply with federal environmental laws like the Clean Water Act, Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 3 of 9 PageID 971 4 National Environmental Policy Act, and Endangered Species Act. Failure of those parties to do so harms the Center’s ability to carry out its mission, as well as the interests of the members that the Center advocates on behalf of. As a result, the Center engages in litigation when necessary to ensure that our nation's laws are enforced. The Center's membership strongly supports these measures. 9. The Center’s organizational interests are being, and will be, adversely affected by Defendants’ and Defendant-Intervenor’s actions, as alleged in this lawsuit. Specifically, the Army Corps of Engineers’ (Corps) decision to finalize an inadequate area-wide environmental impact statement and approve a Clean Water Act permit for the South Pasture Extension Mine without first lawfully complying with the requirements of the Clean Water Act, National Environmental Policy Act, and Endangered Species Act harm not only the Center’s mission and the interests of our members, but also the Center’s procedural interests. For example, the Corps’ failure to hold site-specific hearings on the South Pasture Extension Mine, as requested by the Center, harms the Center’s interest in participating in the public participation aspects of the National Environmental Policy Act. The same is true as it relates to the U.S. Fish and Wildlife Service’s (Service) role in the approval of this phosphate mine. 10. The Center’s members include individuals with varying interests in wildlife species and their habitat, ranging from scientific, professional, and educational to recreational, aesthetic, moral, and spiritual. Further, the Center’s members enjoy the biological, scientific, research, educational, conservation, recreational, and aesthetic values of the regions inhabited by these species. The Center’s members observe and study native species and their habitat; derive professional, scientific, educational, recreational, aesthetic, inspirational, and other Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 4 of 9 PageID 972 5 benefits from these activities; and have an interest in preserving the ability to enjoy such activities in the future. The Center’s members have participated in efforts to protect and preserve natural areas, including the habitat essential to the continued survival of native species, and to address threats to the continued existence of these species, including the threats posed by phosphate mining practices. 11. The Center has members who are negatively impacted by phosphate mining in Bone Valley, including in Charlotte, DeSoto, Hardee, Hillsborough, Manatee, Polk, and Sarasota counties. The Center’s members are particularly concerned with the conservation of imperiled species impacted by phosphate mining as a result of habitat destruction, water quality degradation, direct take, and other direct and indirect impacts. Therefore, the Center and its members support the strong and effective implementation of federal environmental statutes that are designed to protect public health, species welfare, and the environment on which both rely, including the Clean Water Act, National Environmental Policy Act, and Endangered Species Act. 12. I also personally believe that effective implementation and enforcement of our environmental laws, including the ones at issue in this litigation, is essential to protecting the public, our nation's natural resources, and our native species. Thus, I am very concerned about the actions the Corps and the Service took in approving the South Pasture Mine permit in advance of adequately complying with the Clean Water Act, the National Environmental Policy Act, and the Endangered Species Act. 13. While I currently reside in Oregon, I have visited the Center’s Florida office and have personally observed the devastation to the environment in west-central Florida from Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 5 of 9 PageID 973 6 phosphate mining activities. On May 16, 2016, to aid in my understanding of this issue I took an aerial tour of phosphate mining and fertilizer plants in west-central Florida. Below is a photograph I took on that aerial tour of an active phosphate mine. This photo illustrates not only the extent of the mine itself, but also the use of dragline technology to remove phosphate ore deposits. 14. In the course of my work I have toured many other areas of heavy industrial activity, including mining areas, but I was truly astounded and horrified by the scope of the environmental devastation from the phosphate mines that I saw on that tour. As my above photo illustrates, the magnitude of the impact from phosphate mining activities on Florida’s environment, essentially overtaking the entire landscape, is vast and the mixing of mining areas with fresh water resources is distressing. Recognizing that this is a region where heavy rains and flooding are not uncommon and hydrologic connectivity is ubiquitous, I am Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 6 of 9 PageID 974 7 concerned about how pollution from phosphate extraction and fertilizer production contaminates streams and drinking water sources, and can lead to the fish kills and public health crises. 15. Below is another photograph I took during last year’s aerial tour. This photograph is of the fertilizer plant and phosphogypsum stacks at Riverview. I believe it can be difficult for a photograph to adequately capture the sheer size of such a facility and its clear environmental security concerns, but I find the transmission lines in the foreground as well as the Tampa Bay in the background to be useful for comparative purposes. 16. I will continue visiting the Center’s Florida office, and during those visits I hope to enjoy recreating in the natural environment and spotting native Florida species like the Florida panther and Audubon’s crested caracara. Additionally, I enjoy floating on rivers and Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 7 of 9 PageID 975 8 kayaking, and look forward to recreating on Florida’s scenic and wild waterways like the Myakka River. 17. When visiting Florida’s waterways and wild areas, I enjoy walking, swimming, bird watching, plant identification, and looking for wildlife. Phosphate mining activities in Bone Valley have a profound negative effect on my enjoyment of Florida’s unique natural environment. In addition to diminishing available habitat, and thus my opportunities to view plants and wildlife, I am also concerned about exposure to air and water pollution from phosphate mining activities. 18. I am deeply concerned about the environmental and public health consequences of phosphate mining in Florida. I have focused my career on working to reduce threats to human health and the environment posed by contaminants and pollutants. 19. I believe that if current phosphate mining practices continue in Florida, the environment, wildlife, recreational opportunities, and public health will be harmed, and, therefore, I will suffer a number of harms, including the following: (1) emotional harm from knowing people, native habitats, and imperiled wildlife across the region will be injured by harmful pollutants and environmental destruction; (2) a loss of psychological and spiritual health from knowing that the environment and wildlife will been harmed; (3) an aesthetic harm because the environment will be degraded and my chances of observing wildlife will be diminished; (4) a recreational loss because my outdoor enjoyment will be diminished due to environmental degradation of the land and water , and potential exposure to the noise, dust, and other environmental pollutants in the areas where I plan to recreate; (5) a physical harm to me if I am exposed to potentially dangerous pollutants in waterways and the surrounding Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 8 of 9 PageID 976 9 environment from phosphate mining activities; and (6) a procedural injury because I am harmed when our environmental laws are not enforced and when I cannot participate in the public administration of those laws. 20. I believe that the Corps’ and Service’s alleged failures in approving the South Pasture Extension mine permit are putting human health and the environment at risk. I especially hold these views in light of my knowledge about the huge sinkhole that opened up last fall in a phosphogypsum stack that is controlled by Defendant-Intervenor Mosaic, and my understanding that the same stack is a destination site for processing phosphate ore from the planned mines. This sinkhole threatened the safety of millions of Floridians—including the safety of the Center’s staff and members who live in Florida —with a spill of radioactive waste into the Floridan aquifer, an impact that I believe went without substantive analysis by the Corps or Service prior to approving this permit. If the South Pasture Extension mine permit was remanded back to the Corps for reconsideration and genuine compliance with the Clean Water Act, National Environmental Policy Act, and Endangered Species Act, the Center could better fulfill its mission of protecting native species and the habitats on which they rely, I could better understand and identify approaches for the Center to take to help ensure a clean and healthy environment for humans and wildlife, and the Center and I could better represent the interests of our members in protecting public health and the environment. I declare under penalty of perjury that the foregoing is true and correct and was executed on June 20, 2017 in Portland, Oregon. /s/ Lori Ann Burd Lori Ann Burd Case 8:17-cv-00618-SDM-MAP Document 61-9 Filed 06/30/17 Page 9 of 9 PageID 977 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF NANCY ARMSTRONG I, Nancy Armstrong, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I have been a member of People for Protecting Peace River (“3PR”) for roughly ten years, and I recently became a board member. Through 3PR, I raise awareness about phosphate issues, specifically how it destroys native land and compromises water quality. I rely on 3PR to represent my interests in conservation. Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 1 of 9 PageID 978 2 3. I have also been a member of the Center for Biological Diversity (“Center”) for several years. The Center represents my interests in conserving endangered species and their habitats. I believe that little is being done to protect the creatures that are on the land, and not a lot of emphasis is placed on protecting them. I believe the Center’s work is important because there are not a lot of experts in the field joining in to protect the endangered species. 4. I am deeply concerned about the Corps’ decision to permit phosphate strip mining in the South Pasture Extension because it will continue the degradation of the land that has already happened in the South Pasture Mine and Fort Meade. I can see what results from years of phosphate mining when I drive up SR 39, SR 37, and Old Fort Green Road in Hardee County, Florida. There are acres and acres of land covered by invasive, nonnative cogon grass, hills, and pits along the road sides, and shells of buildings of businesses from days gone by. Landscapes with berms planted up with cedar trees and pine trees are designed to obscure the more distant view. These berms hide what mining looks like: a landscape of lifelessness; heavy machinery, ditches, pipes, and hundreds of acres of wasteland. Throughout the years traveling these roads for work and pleasure, I have been amazed to see clay settling areas begin and become behemoths within a short span of time. I’ve also seen looming mountains with conveyances traveling up and down along the edges. 5. Many of the people in areas such as Fort Lonesome, Keysville, and Bradley Junction have families that have lived there for generations and do not have the ability to move away. One family I know of is a case in point. The woman’s grandad bought the Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 2 of 9 PageID 979 3 house and property over 50 years ago for his generations and for those to come. Their means were small but they enjoyed their rural lifestyle. She now cares for her mother who has cancer and her children. She is afraid her water is not safe for her family due to mining. 6. As a resident of Hardee County, I am concerned that phosphate mining will affect my health by compromising the water and concentrating radiation in the soil. I am concerned that the clay settling areas keep large masses of land plugged with clay that has bonded with residual fuel oil. I struggle to comprehend how the dredging, destroying, and refilling of pristine land is justified. I want this destruction to be stopped. 7. Living in Ona, I see a lot of wildlife on my property and while driving on the country roads. I regularly see wood storks and crested caracaras. I have gopher tortoises on my property. I see their burrows, and occasionally see them out and about. I have seen baby gopher tortoises, juveniles, and even males facing off. I have seen several eastern indigo snakes on my property, as well as corn snakes, coral snakes, ring necked snakes, and black racers. I have seen hawks, owls, swallowtail kites, and wild turkey, as well as deer. Because we live on pine flatwoods, we try to keep up the burn regime to maintain a healthy ecosystem. 8. I moved to Ona in 2001 to be in a rural setting where the land was as untouched as possible. My home is on twenty acres of property, and I appreciate that the areas around my home are not high density residential or industrial. Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 3 of 9 PageID 980 4 9. I also often travel to the habitats of species to relax and observe them. I have seen eastern indigo snakes, gopher tortoises, wood storks, roseate spoonbills, alligators, otters, and caracaras while driving this area. 10. I owned a native plant nursery in Ona, Florida with my husband for ten years. In my experience as a native plant nursery owner, I am skeptical of the ability of any mining company to perform reclamation on the land they are destroying. It is difficult enough to get native plants to germinate and grow in ideal soil, let alone the unnatural soil and landscape deprived of vital nutrients that will exist after they are finished mining. Certain plants come to mind such as Pinelily (Lilium catesbaei), Pineland Pawpaw (Asimina reticulata),Pennyroyal (Piloblephus rigida). I have seen how fragile and complex the balance is between the intact Florida ecosystems and the varieties of life that make up those ecosystems. I have learned about the Florida habitats and plant life from years of field trips, seminars, conferences, and workshops The USGS workshop on karst was an eye opener. Karst is so amazing. The soluble rock that can dissolve and create caves as pathways for water in an aquifer system. I was totally surprised to see a picture of a hole in the karst in the upper Peace River where the water was going into the hole rather than the water flowing into the river because the water levels were so low. A valuable lesson for us to conserve our precious water supply. 11. I have also been educating myself about the phosphate industry—the purpose, the process, and the pollution. The more I have learned, the more involved I have become to fight the spread of this grandfathered-in industry. An industry that has been around for so long and has entirely ingratiated itself into the state and county governments so as to Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 4 of 9 PageID 981 5 make the residents feel that they are helpless against this corporate monster. They spread around their good will (money) in their targeted communities a long time prior to getting permitting for mining in those areas. Hardee County is a poor county, so it seems people here could be easily bought off by the phosphate company. It is my impression that the money accepted brings their silence along with it. 12. All this influenced me in the laborious work of growing natives for retail, a business for which we ultimately terminated. One reason was to look at the bigger picture. It became more important to try to halt the permanent destruction of the native communities that we still have here in West Central Florida. I was dismayed to learn that the organizations to which I belonged, and which taught me the value of these precious lands and abundant soils, were taking money from the phosphate industry. One organization, Florida Native Plant Society, whose mission statement is “to promote the preservation, conservation, and restoration of the native plants and native plant communities of Florida” solicited the phosphate giant to sponsor their yearly conference, which I view as a big conflict of interest. This conflict of interest was recognized by the Serenoa chapter of FNPS in May of this year. We have been members of this chapter for years. Serenoa Chapter donated $2500 to People for Protecting Peace River, Inc. in response to state FNPS (again) taking a $2500 donation from Mosaic for its yearly conference. The phosphate company has given money to the Florida Native Plant Society, Charlotte Harbor National Estuary Program, and other community organizations. These conservation organizations are compromised. They claim they will use the payoff for “good” to justify themselves. Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 5 of 9 PageID 982 6 13. My personal enjoyment of nature would be damaged if phosphate mining were to be allowed. Mining lands are off limits to everyone. They have “No Trespassing” signs everywhere. The industry makes big promises on how everything will be put back just as good or better than before. What hubris! Driving through the area, I see the berms where there once was grazing land, groves, or woodlands and flatwoods. Of course, wildlife in the affected areas is virtually nil. I believe it may be 20 to 30 years before anything is done to the land to try to replace the lost habitat. 14. I am also concerned because I enjoy visiting Horse Creek regularly, which is part of the Peace River watershed, just a short walk from my home, and will be directly impacted by the phosphate mines. I like to canoe and see the birds and turtles. I mostly walk along the creek at the woods’ edge because that’s where a lot of interesting creatures and plant life, insects, air plants, ferns, and orchids can be observed. I consider myself a passive explorer and learner. I take the time to try and identify things from my naturalist books, like birds, snakes, and amphibians. I take note when I observe an exotic invasive like a Cuban tree frog. It is interesting to see how things work and wonder what you’re going to see next. It is almost always a surprise. 15. Water is life for everyone, and I depend on it for recreation and for drinking. I have also gone boating in the Charlotte Harbor estuary, and have visited various wildlife areas in Manatee, Hardee, Desoto, Sarasota and Charlotte counties. I lived near the Alafia River before I moved to my current home in Ona, Florida, and am concerned for the health of our river systems in the region. The Alafia, where the Riverview and New Wales phosphogypsum stacks are, has been through so many traumatic events related to Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 6 of 9 PageID 983 7 the mining industry. It is hard to believe it is still functioning. I don’t go there anymore. Going to areas that have been so impacted by the industry is very distressing to me. Nature tries to recover after each catastrophe. Who knows what toxins are left behind? 16. My home is roughly ten miles south of the South Pasture Mine Extension, and only five miles south of the proposed Ona Mine Extension. The phosphate mine will not only impact that area, but the areas surrounding it. I am concerned that the noise and traffic will impact my property in a negative way. 17. I also realize that all phosphate matrix mined in Hardee County will go directly to the fertilizer plants in Polk and Hillsborough counties. There, it will add 5 tons of phosphogypsum for every one ton of marketable phosphoric acid that they produce. Phosphogypsum waste will be heaped onto existing stacks to further threaten the water supply of all Floridians who depend on the Floridan aquifer for life. Not to mention these stacks also endanger the health of residents living near them. Increased mining in my backyard will increase the radioactive toxic waste in someone else’s. The health studies that have been done are too few and industry driven. I fear we cannot depend on our regulatory agencies to safeguard our health. 18. I also think it is spiritually and morally wrong to destroy habitat for wildlife and threaten watersheds. We should be protecting this land, not plundering it. It will never return to the state it was in originally. There’s no way anyone can do that. 19. I am concerned that phosphate mining will destroy our quality of life. The mining will cause the wildlife to flee. If you have an area devoid of wildlife and creatures, it is dead. One of the areas that is showcased as reclaimed land is Hardee Lakes Park. It is a Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 7 of 9 PageID 984 8 mined-out area that was donated as a park. The lakes are obviously contoured mine pits, and the land is dominated by cogon grass, which is an invasive species that thrives on disturbed soils and turns the land into a monoculture. It has rhizomes, which means it is a deep-rooted grass that takes over and limits what can grow there. The cows won’t even eat it. It grossly affects what wildlife can forage in the area. Without wildlife, things are dead. 20. The Corps’ decision to allow the proposed phosphate mining is incomprehensible. The phosphate industry should not be allowed to continue to receive permits to destroy our land. I am concerned for the wildlife in the areas, I am concerned for the health of our river systems in the region, and I am concerned for my quality of life. Allowing phosphate mining to continue to expand across the county will endanger the lives of many species and destroy the peaceful experience of living here. 21. While it’s hard to know whether our property value is affected by the South Pasture Extension Mine, it is clear that the mine affects not only the impact area it is in, but everything around. For example, the hydrology is affected. The chemicals Mosaic uses end up in the clay settling areas and sand tailing that they use to fill the mined voids in with. The clay settling areas act as giant plugs that don’t allow the water to recharge. The mined areas create a lot of dust and radiation. The mine may not directly affect my property value right now, but as mining progresses southward toward me, it will. The next slated mine, the Ona Extension, which was evaluated in the Corps’ Areawide Environmental Impact Statement, will be about five miles from me. I’ll be impacted by the noise and traffic. It is all connected. Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 8 of 9 PageID 985 9 22. There has been recent public awareness that there have been hazardous leaks and breaches in the clay settling areas and sinkholes disasters in the phosphogypsum stacks. It seems another leak or discharge is being discovered weekly. We do not know how many of these incidents are ongoing or how many have occurred in the past. The Florida Department of Environmental Protection does not appear to be transparent in reporting these to the public. All this has the capacity to affect our property value as well as our health. 23. I embrace the idea that we need to be guardians of the land that is still pristine. People need to safeguard our natural systems because that’s what sustains us. It also directly affects our water supply, which is the main source of life. Learning more about how natural communities work has taught me to how precious life is and how everything depends on everything else. To think that someone could come in and wipe things out completely is an affront to the idea of what I think is right. That land cannot be re- created. Mosaic is not God. This land was put here for us to care for and maintain for our lives and for our future generations to share. The destruction of the land is going to be something the people of the county are going to regret immensely in the future. People need to open their eyes and see it. I declare under penalty of perjury that the foregoing is true and correct and was executed on June 7, 2017, in Ona, FL. ______________________________ Nancy Armstrong Case 8:17-cv-00618-SDM-MAP Document 61-10 Filed 06/30/17 Page 9 of 9 PageID 986 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF SARAH HOLLENHORST I, Sarah Hollenhorst, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I have been a member of People for Protecting Peace River (“3PR”) for three years. I am also now on the board at 3PR. My main role as a member of 3PR is to table at community events, give information, and speak to the public about protecting Peace River and Horse Creek, which are fresh water resources for us and the wildlife. Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 1 of 10 PageID 987 2 3. I am also a supporter of the Center for Biological Diversity (“Center”). I receive and act on Center action alerts and I rely on the Center to represent my interest in endangered species and their habitats because the Center is the most active organization for those purposes in my area. 4. I have a master’s degree in environmental biology, with a focus on wildlife behavior. I earned my degree at Governor’s State University in Illinois. During that period I established a monitoring study on the southern flying squirrel in several forests surrounding Chicago. When the population suddenly dropped to the point monitoring was impossible I did a study on neighbor-stranger recognition behavior on the Common Loon in Michigan. I currently work at an orange juice plant, but am also a writer and a photographer. I am a published poet, and I previously wrote a human interest column for the local paper, the Arcadian, and covered local events. I am also working on a few books, including a children’s book on the Florida panther. In all these forms of expression, nature is often the stage for my work. 5. I live in Arcadia, Florida, which is in DeSoto County, and I am very concerned about the Corps’ decision to approve phosphate mining in Florida, and in particular, in my county. After many years of being involved and learning more about phosphate mining I have come to the conclusion that what they are doing is destroying the watersheds in the region. 6. I have spent years attending talks at different commission meetings about phosphate mining. I have done research and reading, and I have attended several years of meetings as an original member of Mosaic’s DeSoto advisory council. At those Mosaic Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 2 of 10 PageID 988 3 meetings, I received a lot of information from the company about where the mines will be and what is involved in the phosphate mining process. Even with that direct interaction with Mosaic, I am deeply concerned about the impact these additional phosphate mines will have on the environment and ecosystem in DeSoto County and the region. 7. I have been to mine sites on several occasions, once on a tour approximately two years ago with Mosaic and again more recently while driving around several mine sites. Each time the sand and dust from the sites, which, from my research I understand to be radioactive, was blowing visibly and created a haze in the air. I’ve stood on the other side of a berm and could see a haze of dust outside the mine site. As a person who lives in DeSoto County, I am concerned about what these air particulates and other contaminants will mean to my health and the health of my family, and the harm that we will suffer as a result of exposure. 8. The Desoto Mine site will be about a mile northwest of me is a rich habitat for wildlife because it surrounds several creeks that supply water to the Peace River, and it consists of open pasture, pine flatlands, oak hammocks, cypress stands, palmetto prairie, and open pasture with mature sabal palms. I enjoy seeing Audubon’s crested caracaras, including their young, on a regular basis when I drive by the site. There are at least eight breeding pairs on the site, according to Mosaic. I also regularly see a variety of hawks, sandhill cranes, swallow tailed kites, and an occasional bald eagle. During the wet season, I often enjoy seeing wood storks, roseate spoonbills, ibis, a variety of heron and egret species, and otters. I also often enjoy seeing gopher tortoises and a variety of other turtle species as they cross the road by this site. Deer are also a common sighting. Nearby Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 3 of 10 PageID 989 4 I once incredibly enjoyed seeing a Florida panther and a Florida black bear. I often see grey foxes and occasionally a bobcat. Removing these species or otherwise chasing the away through phosphate mining activities will harm my observational and aesthetic interests, including as it relates to my photography and writing. 9. When the habitat, or as the phosphate industry calls it “overburden” is removed from the areas proposed for mining, breeding populations of wildlife will be gone too, adversely impacting my interests in these species. If the reclaimed land was conducive to tree regrowth it would take decades to regrow the trees to nesting height. With the removal of the underlying clay and stone layers, and in some large areas of the site the addition of massive clay settling areas, the hydrology would be forever changed. 10. The depth of digging required to mine phosphate (up to 60 feet or more) and the massive size of the mining tracts (thousands of acres) at the Desoto mine, has led me to my current belief that phosphate mining is going to devastate wildlife and their habitat, damage water sources, and destroy my quality of life. I will lose the wildlife that I enjoy; clean air; quiet enjoyment of my home and community; and the spectacular dark night sky, which will be destroyed by lights from the mine. In short, I will lose much of what I enjoy in the country home in which I have lived for 27 years. 11. From the subdivision of Hidden Acres where I live, the Desoto mine’s massive clay settling area will be built uphill about one mile to the northwest of my property. Approximately 4 miles north, upstream, will be more sections of the mine, including more massive clay settling lakes. Despite Mosaic’s assurances that the berms will hold in the sludge in the clay settling areas, there is a history of hurricanes and extensive flooding Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 4 of 10 PageID 990 5 in the area. I don’t believe that in extreme weather that my neighborhood won’t be washed out if the berms don’t hold. In extreme weather I don’t believe that it could be possible to evacuate the neighborhood with only two exits that would easily be washed away. I was once trapped for two weeks after a flash flood. The placement of these bermed clay settling lakes upstream and uphill of a subdivision with over 100 residents is reckless, and I am concerned about the risk and harm that it will bring to me and my family. 12. I have lived on my five-acre property since 1990. I enjoy going out at night and looking at the stars, unobstructed by city lights. The phosphate mine will ruin that for me. The lights, the noise, the traffic, and the dust from the nearby mine will all negatively impact my enjoyment of my life and the environment that I love. 13. I live a short walk from Horse Creek, and I like to canoe the Peace River. I am worried about the negative effect on these waterbodies from the Corps’ action in reviewing and approving these phosphate mines, and what that will mean for my continuing use and enjoyment of these resources. For example, I enjoy the diversity of wildlife that I see on the Peace River, including its alligators and manatees. I believe that the destruction of significant sections of the Peace River and Horse Creek because of the mining activities that will result from the Corps’ actions here are going to impair the seasonal flow and impair the quality of water entering the Charlotte Harbor Estuary. I am also worried about pollutants from the mines, along with the possibility of accidental spills, impacting the diversity of life in the system, from the microbiotic to the greater flora and fauna of the region. Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 5 of 10 PageID 991 6 14. Because I don’t believe that reclamation will restore the diversity of species in the area, I don’t believe that the harm to my use and enjoyment of these waterbodies and the wildlife that rely on them will be fixed by the reclamation measures provided in the permit, even if those measures are fully followed. I base my opinion on my environmental biology education and my knowledge through observation and reading that factors such as chemistry changes, turbidity, seasonal water levels, upland nutrient additions such as tannin levels, and microbes impact an environment whereby the life within has evolved, and seemingly minor changes can impact and destroy populations. 15. Phosphate mining will destroy my life and enjoyment of my property and DeSoto County because I enjoy looking at and being immersed in nature, and if I drive down the road and see nothing but pits and mounds, I will be depressed. I believe that nature is a part of us and a part of who we are. I am connected with the trees, with the birds, and with the plants. If phosphate mining destroys nearby land, I will feel as if I was losing a part of who I am because those lands and the wildlife that depend on them are a part of me. 16. I enjoy driving through the area, walking around on my own property, canoeing Peace River, and taking photos in the summer. I enjoy meditating and feeling the energetic connection with nature. Years ago, I enjoyed seeing a panther on the ranch opposite of my property. A neighbor saw a panther in the neighborhood just last year. Panthers have been sighted on the property that will become Ona Mine. I believe this whole area is part of the habitat for panthers that have come up from the south. The thrill of the possibility of seeing a panther is very important to me. Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 6 of 10 PageID 992 7 17. Of all the species in the area, I am most concerned about the caracaras. They need large, open areas to live. They need cabbage palms. There is one experience I had with the caracaras that I vividly remember: It was just after a rain storm, and the sun was low on the horizon and shining through the clouds. An adult caracara landed on a dead pine tree in my backyard. Then, on a branch below it, another young caracara landed, and then another. The sun was shining a golden light on the caracaras, which brought out the golden color on their necks. For me, this was a miracle. A sight like that does something to your heart. I believe caracaras are magnificent and unique birds. 18. Below is a photograph I took last year of a crested caracara within a mile of where the Desoto Mine will be. This photo is special to me because caracaras are something I had never seen or heard of before I moved to DeSoto County. Discovering this bird here made DeSoto County something distinctive, it changed how I looked at things here, and helped inspire me to truly appreciate the county’s natural beauty and the unique character and wildlife here. Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 7 of 10 PageID 993 8 19. The wildlife that makes living in Florida so special is something that is very important to me. I’m out on my property every day and experience wildlife at least 2-3 times a week. There’s a nesting hawk on my property, and an array of smaller birds, especially as they migrate. I get large flocks of robins, tree swallows, and sometimes bluebirds. I enjoy looking for them and look forward to these experiences. From my property, I see a lot of birds fly overhead including wood storks and roseate spoonbills, and sometimes they stop on my property, and then fly off towards Mosaic’s property. I’ve also seen a number of gopher tortoises and eastern indigo snakes on my property and on my travels throughout the region. I look forward to the flocks of ibis that fly over every evening, and to seeing and enjoying the whistling ducks. I love the turtles I come across, including the cooters, snapping, mud, box, and softshell turtles; and gopher tortoises. To have an area that is excellent for them to live in be destroyed, like what I believe will happen with the lands slated for mining, will be devastating to me. 20. I believe that nature is a part of us and who we are. I am connected with the trees and the birds and the plants. I feel that I am losing a part of who I am because they are a part of me and phosphate mining threatens to take that away. I believe it is our responsibility to protect what God has given us. Land is a Garden of Eden and mining represents choosing greed and the destruction of the Garden. It is my responsibility to protect that. Wildlife is just as important as any other thing. We need to make sure wildlife and nature continue to exist and to protect them from those who would damage it. Once it is gone, it is gone. Those slash pine and huge, old oak tress can’t be replaced. Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 8 of 10 PageID 994 9 21. I’ve been out to the mines, to the reclaimed land. They dig everything out and replace it with sand tailings. It doesn’t look or act like natural sand at all. It is not possible to replace the microbes that were in the original soil. Just visualize it: they’re digging up the whole watershed and replacing it with sand. They’re setting is up for a monoculture. It is not natural looking. The cogon grass that grows there is not native and the trees don’t look healthy. Studies have shown that slash pines initially grow rapidly but then don’t survive when the underlying stone and clay that supports the hydrology is removed. You don’t see established wildlife breeding populations out there and it is no wonder, it is a replacement environment, not a restored environment. 22. In addition to the mining itself and the failure of reclamation, I’m also quite concerned with clay settling areas. A clay settling area will be opposite our neighborhood. About 100 families will be downstream of the clay settling area and it is not hard to imagine, given the track record of the industry and weather in the area, a breach or sinkhole jeopardizing everyone downstream of the clay lake. There’s a threat of the whole neighborhood washing away. 23. I believe that the Corps’ decision to allow the proposed phosphate mining is reckless and morally irresponsible, and that its actions will be a direct cause of the harm that I will suffer because of the growth of these mining operations. I believe that it endangers populated neighborhoods due to exposure to radiation above the current levels with radioactive dust that will be inhaled and accumulated daily. I believe that the clay settling areas create an extreme and predictable degree of danger in a flood-prone region to a significantly populations area. I believe the depth and degree of mining has Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 9 of 10 PageID 995 10 endangered and already impacted the most important water resource in the region, the Peace River, and that any further mining will increase that impact and endangerment. I believe that further mining in the region is a threat to threatened and endangered species in the region. Reclamation will not only fail to restore these species’ habitat, but once the fauna is gone, is not restorable. Transplanting individuals to a new environment rarely succeeds and results in further losses, including the original population, which has nowhere to go. 24. I simply cannot understand why they would allow more phosphate mining in Florida. The Corps knows that the phosphate mining company is a polluting company and the mining will lead to environmental degradation, but they keep permitting it. The Corps is acting irresponsibly, and I am concerned their actions will take away my enjoyment of life by destroying the wildlife in my area. I declare under penalty of perjury that the foregoing is true and correct and was executed on June 21, 2017, in Arcadia, Florida. ________________________________ Sarah Hollenhorst Case 8:17-cv-00618-SDM-MAP Document 61-11 Filed 06/30/17 Page 10 of 10 PageID 996 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF SANDRA STINNETTE RIPBERGER I, Sandra Stinnette Ripberger, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I have been a member of People for Protecting Peace River (“3PR”) for roughly five years. As a member of 3PR, I attend the meetings and receive mailings, and I have spoken against DeSoto County’s plans for a phosphate overlay district. Case 8:17-cv-00618-SDM-MAP Document 61-12 Filed 06/30/17 Page 1 of 5 PageID 997 2 3. I became a member of the Suncoast Waterkeeper about three years ago, and I recently became a board member. As a board member of Suncoast Waterkeeper, I participate in board meetings, telephone conferences to make policy decisions, and email correspondence. I am currently planning a fundraiser to raise money for efforts to protect the coastal environment and protect our water resources from phosphate mining. 4. I became a member of ManaSota-88 roughly four years ago. For ManaSota-88, I attend some of the meetings and receive their action alerts and newsletters. 5. I send all three of these organizations financial contributions and rely on them to represent my interests in conserving endangered species and their habitats. 6. I believe that phosphate mining in Florida will destroy the diversity of rich wildlife, add pollutants to the rivers, destroy water tables, and lead to dried-up springs and salt-water intrusion. This would impact my daily life as I enjoy Florida’s abundant resources, including its diverse wildlife and water resources. I do not believe there is a real possibility of restoring the land after mining. I do not believe that the mined land is ever restored to full productive use after the phosphate mining company is done. Independent experts find that the phosphate industry is not able to restore wetland systems. 7. I believe that the phosphate mining in South Pasture Extension is a problem because of the rich wetlands there that are a crucial part of the watersheds. The South Pasture Extension is a large area of land, and I believe allowing this extension will prolong the pollution and destruction that phosphate mining has brought, and eliminate Case 8:17-cv-00618-SDM-MAP Document 61-12 Filed 06/30/17 Page 2 of 5 PageID 998 3 the rich diversity of species in that area. I consider phosphate mining to be an assault on our natural resources, and it should not be allowed to continue. 8. I have taken the coastal and upland modules of the Florida Master Naturalist Program at Manatee County’s Extension Service. The Florida Master Naturalist Program is an adult education program developed by the University of Florida and provided by many Extension offices and participating organizations throughout the state of Florida. The mission of the Florida Master Naturalist Program is to promote awareness, understanding, and respect of Florida's natural world among Florida's citizens and visitors. As part of the program, I increased my knowledge of Florida's natural systems, of the plants and animals that depend upon those systems, and of the role of humankind in shaping our past, determining our future, and being stewards of the land. The coursework augmented my knowledge of the rich biodiversity and fragility of habitats found only in Florida through field trips and classroom study. I love the many native species Florida has, and I enjoy collecting photographs of them. For example, I have a beautiful print of a Sandhill crane family hanging in my home. I am concerned that the permitted phosphate mining would diminish my enjoyment of Florida’s natural systems. 9. Spiritually, I feel that it is a moral crime to allow the kind of destruction that phosphate brings. I believe the concept of wilderness is important to our identity as humans and Americans. More than any other nation, we value and set aside conservation areas for future generations to appreciate. I think that humans need to live in harmony with nature and not have dominion over them. Humans should coexist and learn from nature. I believe that the animals have a right to live, just as we do. I feel and am Case 8:17-cv-00618-SDM-MAP Document 61-12 Filed 06/30/17 Page 3 of 5 PageID 999 4 concerned that humankind is in great jeopardy if we choose to disregard that right. I believe that animals are more intelligent than we understand and that we learn more everyday about the contributions of these animals. I believe that taking away these animals’ lands and preventing future contributions to the ecosystem would be morally reprehensible. 10. I am concerned that species will go extinct because of the impacts of phosphate mining. I know that the caracara, the Florida panther, and the scrub jay are very vulnerable to extinction. Even though there have been attempts to relocate the scrub jays, they are a threatened species and their habitat is restricted to the rare oak scrub community of Florida that is removed by phosphate mining and not restored. The loss of these species would affect me spiritually and emotionally. 11. I am also concerned about the impact phosphate mining has on water quality. I believe that the Peace River and Myakka River are important. The Peace River is a source of water for Manatee County, and will be a source for other counties in the future. The Myakka River is important for the health of Charlotte Harbor and various fisheries. I enjoy kayaking on the Peace River and boating in Charlotte Harbor. In the spring we often visit the Harbor in tarpon season and value the Estuary’s water quality. I believe that phosphate mining will jeopardize both of these rivers because of the danger of dam breaches at clay settling areas and phosphogypsum stacks as have happened on other rivers. If this were to happen I would not be able to enjoy these rivers as I currently do. 12. I believe that approving phosphate mining at the South Pasture Extension in Hardee County is a tremendous mistake. I believe that the harm I will suffer is a result of Case 8:17-cv-00618-SDM-MAP Document 61-12 Filed 06/30/17 Page 4 of 5 PageID 1000 Case 8:17-cv-00618-SDM-MAP Document 61-12 Filed 06/30/17 Page 5 of 5 PageID 1001 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF STUART MCCORNACK SMITH I, Stuart McCornack Smith, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I am a member of Suncoast Waterkeeper. I became a member in 2015 to support its efforts to protect Long Bar Pointe on Sarasota Bay, near where I live. As a member, I support its other efforts, including its efforts to curb phosphate mining. Case 8:17-cv-00618-SDM-MAP Document 61-13 Filed 06/30/17 Page 1 of 6 PageID 1002 2 3. I have a B.A.in geography, which encompasses all elements of man’s relationship to the land. I believe this discipline explains better than any other why we see what we see in the landscape. 4. I live in Bradenton, which is in Manatee County, and I recreate throughout the region. I spend a lot of time outdoors. I enjoy connecting with nature and feel fulfilled when I spend time outside. I enjoy kayaking, camping, and observing wildlife. I have hiked nearly every inch of Myakka State Park, and kayaked almost the entire Myakka River. Phosphate mining is a threat to these inland parksystem resources which are among the best in Florida. I am concerned about the adverse effect to my use and enjoyment of the Myakka River from the expansion of phosphate mining proposed for the South Pasture Extension and the other mines at issue in the Area-wide Environmental review. 5. I also have serious concerns about the impact phosphate mining will have on the watersheds of the Myakka River and Peace River, especially the clay settling areas. I am particularly concerned about the clay settling areas at the proposed DeSoto Mine, which is extremely close to Myakka State Park and whose Pine Level and Keys extensions reach into Manatee County nearly to the park boundary. 6. I am concerned about the Corps’ decision to approve phosphate mines in Florida because of the impacts on historically visible on the land, especially as it relates to environmental and economic viability. From what I have seen, phosphate mining activities have left the mined-out lands virtually useless. Polk County, where phosphate companies have mined for more than 100 years, is littered with gyp (phosphogypsum) Case 8:17-cv-00618-SDM-MAP Document 61-13 Filed 06/30/17 Page 2 of 6 PageID 1003 3 stacks and slime ponds. Mosaic alone owns nearly 100,000 acres that, to my understanding, it can’t seem to get rid of—or convert to more than the most rudimentary use. Of the company’s more than 450 parcels, only three are known to be assessed even partially as cropland, according the Polk County property appraiser. 7. I worry that in Manatee County, where I live and where Mosaic owns one out of every twelve acres, phosphate mining will impact imperiled species, affect the drinking water supply that I rely on, and preclude other more fruitful uses of the land that would provide better economic and environmental benefits for the county such as recreation, housing, agriculture, tourism and clean, sustainable industry. I am also concerned for my neighbors, communities, and the economic health of Florida that in Hardee County, where other mines are proposed, there is not as much economic opportunity as in Manatee County and phosphate mining could destroy any future opportunity Hardee County could have to use the land. 8. I enjoy encounters with Florida wildlife and enjoy spending time in their habitats. I observe wildlife species, particularly shore birds, every day including endangered wood storks; several species of special concern including American oystercatchers, brown pelicans, reddish egrets, snowy egrets, little blue herons, tri-color herons, white ibis and roseate spoonbills; and seasonal white pelicans, magnificent frigate birds and common loons. From my home, I see about 30 different species of birds. I visit Myakka State Park, where I have seen butterflies, alligators, waterfowl, deer, and eastern indigo snakes. I’ve visited Duette Park. In my trips around Florida, I’ve seen gopher tortoises, and other native Florida wildlife. Case 8:17-cv-00618-SDM-MAP Document 61-13 Filed 06/30/17 Page 3 of 6 PageID 1004 4 9. Species and their habitats - particularly their habitats, because without them there are no species - attract me to recreate and otherwise enjoy these areas not just because I enjoy experiencing the species, but also simply for the enjoyment of knowing they are there, and I would be negatively affected if they are not. I believe that deep down, people have a need to connect with nature. My personal enjoyment comes from the aesthetic and spiritual affirmation that people still care about these things and take a balanced view of their relationship to the land. We aren’t entitled to have it all, and things are actually much better if we don’t. 10. I believe that humans are obligated to be stewards of the land, and we must respect the rights of other species to exist. Wildlife has an inherent value and right to live. The Agencies’ actions here significantly harm my interests in using and enjoying the Myakka River and the other resources, such as the avian wildlife, that will be affected by the mining of these areas. I don’t understand why the Corps would allow the destruction of vital natural habitat for species. 11. Oscar Scherer State Park in Sarasota was famous for scrub jay habitat thirty years ago, and the habitat connected all the way out to Myakka State Park. Gradually the habitat became fragmented and isolated, and development was allowed to go up to one side of park. When the development went in, the birds left, and now the scrub jay population is virtually gone. I have not seen a scrub jay down there in years. I am concerned that the same pattern is going to repeat itself at after these phosphate mines drive species from their native habitat, and I have no realistic expectation, based on my experience, that displaced wildlife will return to these areas. There are extraordinary Case 8:17-cv-00618-SDM-MAP Document 61-13 Filed 06/30/17 Page 4 of 6 PageID 1005 5 things to see in Florida, and I do not want to see phosphate mining take those things away. 12. I am very concerned about the quality and quantity of water in the Peace River and Myakka River watersheds as a result of the approved mine expansions because I believe these mines will degrade them. I recall studies over the years have shown that mining has contributed to lower flows in the Peace River; and in years past, dam breaks have killed everything downstream for miles with acidic water and suffocating slimes. The Myakka is Florida’s only Wild and Scenic River, as well as an Outstanding Florida Water, a designation intended to protect waters with existing good water quality. These rivers have a much greater social and economic value in their natural states than as dumps for mine wastes, and I will be adversely affected by their degradation. 13. I am also extremely concerned about the storage of phosphogypsum in “stacks” all around the state. It is really unfortunate because it appears that storing phosphogypsum in stacks is the only option available. I know that well-meaning people have looked for viable uses for that radioactive waste product, but is has to be stacked because it is so radioactive and toxic that it can’t be used to make anything else, not even roads. It is in part because of these phosphogypsum stacks that I believe phosphate mining is the most destructive form of strip mining there is. Other types of mining leave other waste you have to deal with, but they generally don’t leave these giant piles of radioactive waste and slime on the landscape. 14. There are stories from around the world where phosphate mining has destroyed lands and cultures. One made a particularly big impression on me. Nauru in the Pacific is Case 8:17-cv-00618-SDM-MAP Document 61-13 Filed 06/30/17 Page 5 of 6 PageID 1006 Case 8:17-cv-00618-SDM-MAP Document 61-13 Filed 06/30/17 Page 6 of 6 PageID 1007 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA Tampa Division ______________________________________ CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants, and MOSAIC FERTILIZER, LLC, Intervenor-Defendant. ______________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No: 8:17-cv-618-SDM-MAP DECLARATION OF THUONG N. DANG I, Thuong N. Dang, declare as follows: 1. The facts set forth in this declaration are based on my personal knowledge and if called as a witness, I could and would competently testify to those facts under oath. As to those matters that reflect a matter of opinion, they reflect my personal opinion and judgment upon the matter. 2. I have been the Suncoast Waterkeeper since 2016, and I rely on it to keep me informed and to represent my interests in conservation. 3. I have an undergraduate degree in hospitality and a masters’ degree in business administration, an academic education that prepared me for my dream job – owning my Case 8:17-cv-00618-SDM-MAP Document 61-14 Filed 06/30/17 Page 1 of 5 PageID 1008 2 own organic farm. But thanks to phosphate mining, instead of doing that, I’m currently a postal service clerk at the U.S. Postal Service. 4. In 2013, my husband and I bought 7 acres of farm land in Myakka City. We bought that land with the intention of starting an organic farm. For two years, I worked to prepare the land, made investments in the land, build a tool shed, purchased mowers, and cultivated fruits, vegetables, and an orchard. 5. Our life’s dream was to make a living off this land and someday retire there. We were going to build a cottage, a zen garden, and grow old there, then we learned that Mosaic wanted to mine the land directly across the unpaved street from our land. We were devastated. 6. We learned through a public notice that our small farm was directly across the street from what will be the Wingate East Extension Mine. To be certified organic, you cannot use any fertilizer or chemicals for three years and you have to have your neighbors certify that they won’t as well. The knowledge that our organic farm would now abut a phosphate mine changed our lives forever. We knew then that if the mine were approved, we’d have to sell our land or make some other use of it, because we would never be able to get it certified given the mining activities. 7. It is my understanding that before mining even begins, they burn off the vegetation and spray the land with glyphosate. The use of these chemicals alone, so close to my property would make it impossible for me to get my farm certified. 8. Once we learned that we would not be able to organically farm, we opted for a different farming process called a food forest, a permaculture technique that uses no Case 8:17-cv-00618-SDM-MAP Document 61-14 Filed 06/30/17 Page 2 of 5 PageID 1009 3 inputs except from nature, so bird and rabbit droppings and cow manure. We let our neighbors use our land to graze there dozen or so cattle in order to fertilize our land. I am concerned that once land clearing activities begin, the birds, rabbits, cows and other creatures that might fertilize our land will leave the area entirely. That would force me to make additional expenditures to supplement the loss of natural fertilizer. 9. Even without a mine directly across the street just yet, I regularly see trucks carrying their loads from the phosphate mines farther inland. I am convinced that these trucks contribute to the oil sheen I observe in the water in the culvert I share with Mosaic. That culvert runs to a cow pond to ditch which then enters the headwaters of the Myakka River. I believe that this localized pollution will only get worse when Wingate East Extension Mine is under production. 10. I am very upset by the Corps’ decision to approve phosphate mining in this area. It will jeopardize everything. The water, the land, our livelihoods. I don’t think the Corps realizes that this is more than a local impact, it will effects the entire county, adjacent counties, and maybe even the state of Florida. 11. As an organic farmer I am keenly aware of the importance of the microbes and diversity of life found in the soil and their importance in sustaining life. Phosphate mining will change the composition of the soil forever. All you will see growing on their land after they “reclaim” it will be cogen grass, a nonnative, nasty weed that makes it impossible to grow anything else. 12. Nature is a beautiful thing and when it gets interrupted and destroyed, animals will flee. The reclaimed land is not natural. It is not nature. It is manmade. It is like the Case 8:17-cv-00618-SDM-MAP Document 61-14 Filed 06/30/17 Page 3 of 5 PageID 1010 4 song Big Yellow Taxi – “pave paradise and put up a parking lot.” The phosphate mine absolutely negatively impact my aesthetic interests in country living. 13. The reason we wanted to start the organic farm was to get away from the city, to live a calmer life. I grew up in New York and Philadelphia and so working out in the country is the complete opposite. I feel as though I’m now going to miss out on a significant source of spiritual peace for me. 14. I also enjoy kayaking and canoeing at Oscar Shear State Park. A main reason we live in Florida is to enjoy nature, wildlife, and open spaces. All of that is going to be disturbed when the mining comes through and my recreational interests will be impacted as a result. 15. I believe that the value of this landscape is priceless. We are one of the pieces of mother nature, and as intelligent species, we have a moral obligation to protect everybody else, all the smaller more helpless ones. I feel this way, not just for my farm, but for the whole region. We see the destruction of this industry. It is killing mother nature. 16. Phosphate mining is not s temporary land use. Mosaic received permission to rezone 3,000 plus acres from residential/agricultural to extraction. If they are permitted to actually mine, not only will it impact the health of the animals, the plants, the natural habitat, but my own health as well. We were planning to start a family once we established the farm, but I am now deathly afraid to do that because of the possible glyphosate contamination in our ground water and well water we will use and the radioactivity from the waste byproduct made by the mines that may harm me and the family. Case 8:17-cv-00618-SDM-MAP Document 61-14 Filed 06/30/17 Page 4 of 5 PageID 1011 5 17. I am also concerned about the radioactivity of the phosphogypsum stacks and the possibility of water contamination through a sinkhole. The new mining will only contribute to that growing problem. 18. Phosphate mining is a 24 hour operation; my family will not be able to sleep while the giant bright construction lights are shining brightly only 500 feet away from our property. The noise that phosphate mining generations all day and night will not allow any rest. How will my children get enough sleep to wake up and take the school bus that drives down McLeod Road each weekday morning? The mining may begin once their operating permits are approved, but the mining does not end until beyond the time my children goes off to college decades from now. Not until after that, is Mosaic required to finally reclaim the land. How many more years will that take? I will be long retired by then. Phosphate mining is not temporary use when it takes a lifetime to wait for it to go away. I declare under penalty of perjury that the foregoing is true and correct and was executed on June 28, 2017, in Sarasota, Florida. ________________________________ Thuong Dang Case 8:17-cv-00618-SDM-MAP Document 61-14 Filed 06/30/17 Page 5 of 5 PageID 1012
