County Moves To Amend Wetland Ordinance In Land Development Code

BRADENTON -- At Thursday's BOCC Land use meeting, commissioners were presented with a proposed amendment to the county's wetlands ordinance that would "codify" the practice of allowing phosphate companies to destroy wetlands with only 20 percent of the reclamation responsibilities expected of land developers. Assistant county attorney Bill Clague credited an "overriding public benefit" for phosphate's preferred status, but some commissioners and citizens begged to differ.

The Manatee County Attorney's Office advised the Board of County Commissioners of the need to amend and restate Section 719: Wetlands, of the Land Development Code. Questions as to the reasons and timing have critics asking, why now? It appears one set of laws apply to developers and landowners, while another set of rules apply to phosphate mining.

Just a week ago, Mosaic Mining LLC received their "operational approval" to mine the East Wingate Mine Extension for five more years; but now county attorneys think it's time to, "… codify policies and practices in accordance with the requirements of Florida Statutes, and makes 'housekeeping' changes for clarity and consistency."

At Thursday's BOCC Land Use Meeting, two Commissioners, Michael Gallen and Robin DiSabatino, were surprised to see this action on the consent agenda -- not where one would typically find Master Mining Plan changes or amendments to The Manatee County Phosphate Mining Code. Both thought it wise to pull the item for discussion and a vote.

They weren't alone. Bradenton resident Barbara Angelucci spoke at the "Citizens Comments" portion of the meeting.  

"…The last decision made regarding wetland impact mitigation carried a ratio of 1 to 1. Why does mining have a 1 to 1 ratio while developers and others are held to a 5 to 1 ratio?" asked Angelucci."If these housekeeping changes do reflect this ratio imbalance, then certainly the commission needs to revisit all motions and approvals related to this. And if the most recent Mosaic approval did not meet the current wetland mitigation criteria, why were they not asked to comply?"

Commissioner Benac later said that she took offense to what she saw as an accusation that the county broke the law and Commissioner Whitmore concurred.

But Angelucci wasn't accusing the county of breaking the law, so much as pointing out that if Thursday's action was necessary, then previous approvals could not have been in compliance with a policy that had yet to exist. She was right; just weeks before there was a development approved with a 5 to 1 ratio (5 acres of wetlands restored for every 1 that is destroyed), compared to one week prior, when Mosaic's wetland mitigation for Wingate was approved at 1 to 1.

County Attorney Bill Clague responded, "We're not changing the rules. We are codifying them." 

Usually, supporting documents and prior history explaining the action being taken by the commission is posted in the agenda to assist the public, but there weren't any on this item. Angelucci said she believes the county waited until Mosaic got all of their permits before they decided to codify what was already being applied to all other applicants.

Commissioner DiSabatino asked County Attorney Bill Clague if the Uniform Mitigation Assessment Method (UMAM) -- the 5 to 1 ratio adopted by the county -- applied to Mosaic? 

Clague responded that "phosphate mining is held to a different standard than other applicants, when it comes to wetland mitigation." The preferential treatment is due to what Clague called, "an overriding public benefit."

Commissioner Gallen wasn't so sure. "I have trouble with that," said the District 2 commissioner. "I don't see it that way." Gallen reminded them that he was on the other side of the issue when Mosaic was permitted. 

"You shouldn't be making up your mind before you hear the whole story." Whitmore badgered Gallen.

What was first said to be "no substantive changes" was appearing more complicated, and emotion began to drive the discussion. 

The board eventually voted 4-1 to continue the item at a public hearing, where hopefully some clarity will emerge. Gallen was the dissent vote, and Commissioners Bustle and Baugh were absent.

Before the item was voted on, Clague told commissioners the supporting documents would be present at the next hearing.

Author's Note:

Ordinance 13-04 Section 719.2 reads:

If the proposed project requires dredge and fill or surface water management permits or an Environmental Resource Permit from Federal, State, or Regional agencies, no additional jurisdictional determination shall be required. The most restrictive wetland boundary delineated by the other permitting agencies shall be accepted by the county.