Federal Appeals Court Upholds Order Throwing Out Permits for Controversial Everglades Mining Project

The 11th Federal Circuit Court of Appeals yesterday upheld the decision by a federal district court in Miami to vacate a controversial set of permits for a massive mining project located near Everglades National Park that would have threatened to contaminate Miami-Dade County's largest freshwater wellfield.  The appeals court agreed with the district court that the U.S. Army Corps of Engineers had failed to properly consider whether there were practicable alternatives to the mining.

As the appeals court noted, the so-called “Lake Belt” mining project pits the “competing interests” of the mining companies against “the need for public drinking water” and “the protection and restoration of the ecology of south Florida, increasingly threatened by mining, development, and agriculture.”  The mining threatens to introduce dangerous bacteria and cancer-causing chemicals into local wells.  It would harm tens of thousands of acres of irreplaceable historic Everglades wetlands habitat, even though the U.S. Department of Interior has warned that these wetlands are “the last remnant of the short hydroperiod marshes that are critical to the proper functioning of the Everglades ecosystem” and their conversion to “deep, open-water lakes removes an extensive area of this critical wetland habitat from the system, replacing it with non-natural habitat of little or no value to the Everglades ecosystem.”  The permanent creation of the 80-foot deep mining lakes will also significantly increase harmful drainage or “seepage” out of the adjacent Everglades National Park and other publicly-owned wetlands, undermining restoration initiatives underway such as the multi-billion dollar federal-state Comprehensive Everglades Restoration Plan. 

Yesterday’s decision by the 11th Circuit affirmed a January 2009 decision by senior Judge William M. Hoeveler.  This decision was the most recent by the senior judge, who has scrupulously presided over an almost decade-long legal effort by NRDC, Sierra Club and the National Parks Conservation Association to ensure that the Corps complies with environmental laws and uses the best available science in approving mining in the Lake Belt. 

In recent years, federal and county scientists have become increasingly concerned that the current half-mile buffer zone around 15 wells near the planned mining is dangerously inadequate.  In 2005 and 2006, the County detected benzene at levels above the applicable limit at several of the wells, and in the surrounding groundwater.  Although benzene levels appear to have abated, petroleum-based blasting materials used by the mining companies have been considered the most likely source.

NRDC and the other environmental groups have long warned the mining projects could allow potentially lethal parasites, including cryptosporidium, to enter the drinking water system. In 1993, water-borne cryptosporidium caused 400,000 people in Milwaukee to experience intestinal illness. More than 4,000 were hospitalized, and at least 50 deaths were attributed to the disease. Because of this and other contamination incidents, EPA has strengthened drinking water regulations to protect against disease-causing organisms.

A strong note of caution:  I fear that these recent legal victories in favor of public health and the Everglades may be short-lived.  Somewhat unbelievably, the Corps is poised to re-issue the very same permits just rejected by the federal courts and the issuance of new permits of indefinite duration that would authorize an additional 10,000-12,000 acres of wetlands loss. Together with existing mining pits, this amounts to an approximately 30 square mile expanse of mining pits potentially lining the eastern side of the remaining publicly-owned Everglades. The proposed mining permits are opposed by NRDC and the other plaintiff organizations, as well as by the Everglades Coalition, an alliance of 52 local, state, and national conservation and environmental organizations dedicated to full restoration of the greater Everglades ecosystem. 

I hope that the Obama Administration considers yesterday’s court decision as sufficient reason to put the brakes on this sweeping mining proposal.  Demand for the limestone from these mines is dramatically down.  Under the Florida Department of Transportation’s most likely growth scenarios, statewide consumption of limestone is projected to increase only to 50-60% of previous peaks in the next five years – and an increasing share of this consumption is now derived from granite and other out-of-state sources.  Indeed, the miners are now shipping the rock dug out of the Everglades to Panama!  There is no better opportunity for taking a time-out to provide for careful application of our laws intended to protect the environment and public health.