There are deep, wild woods in Florida, none deeper or wilder than the vast, spongy floodplains of the Suwannee. On the clear, cool afternoon of May 7, 2003, the air is fragrant with wildflowers, and the chanting of mockingbirds rises and falls against an electric buzz of cicadas. The river, still carrying debris from recent rains, has dropped eight feet; I can see the old waterline on the trees. A brown water snake sashays across the surface. Near the bank a large basking turtle -- possibly a Suwannee cooter -- splashes from a snag, giving me only a glimpse of its carapace as it sinks into the tannin-stained flow. Here, 60 miles from the sea, endangered manatees feed on succulent plants; and, day and night, threatened gulf sturgeon, the size of people and shaped like sharks, shoot high into the air, smashing the surface with their armored sides. There are bowfins, longnose and Florida gars, 15 species of sunfish, seven species of catfish, largemouth bass, and Suwannee bass. Sometimes alligators haul themselves out on the floating dock I'm standing on.
The dock belongs to Svenn and Joy Lindskold. The Lindskolds don't worry about floods. Forested wetlands on and around the property slow the water and soak it up. And their house rests on 14-foot-high stilts. During the mild flood of 1998 their "first floor" (below the stilts) was five feet underwater. Scarcely inconvenienced, they canoed to and from the stairs.
The Lindskolds live in no town -- just Gilchrist County. Their upstream neighbor to the north is a phosphate strip-mining company called Potash Corp. of Saskatchewan (PCS). Wrapped tightly around the 100,580-acre project area on the east, south, and west is the Suwannee River. Wetlands and streams that feed the Suwannee have been polluted, degraded, or, in many cases, gouged out of the earth by PCS; and now the company plans an 18,166-acre expansion of the mine.
Until January 10, 2003, many of the streams and wetlands on 3,997 acres of the expansion area were protected by the Clean Water Act. But on that date the Bush administration, through its Army Corps of Engineers and Environmental Protection Agency (EPA), issued a "guidance document" instructing field agents on how not to apply the Clean Water Act. No longer were they to bust parties who filled or fouled "isolated waters" that are non-navigable and "intrastate" (completely in one state) just because migratory birds are present. No definition of "isolated waters" was provided, but the agencies have since proclaimed them to be streams that flow intermittently or dip underground, and wetlands that don't have obvious connections to larger waters. The document also ordered agents to seek "headquarters approval" before issuing a citation, thereby dooming enforcement by initiating an endlessly ascending chain reaction of butt-covering permission requests.
With these directives came a proposed rule-making, suggesting that isolated waters don't count anymore and inviting comment on how to define the word "isolated" so as to make the Clean Water Act more palatable to those it inconveniences. If the rule goes through, it could degrade 60 to 80 percent of the stream miles in the United States.
The enforcement ban -- which delighted DuPont, Dow Chemical, the American Forest and Paper Association, the National Association of Home Builders, the National Cattlemen's Beef Association, state farm bureaus, and other development interests that lobbied for it -- was made possible by a broad and bizarre interpretation of a January 9, 2001, Supreme Court decision about some wetlands in Illinois. The only point the Supremes had made was that use by migratory birds is no longer grounds for federal protection of intrastate, non-navigable waters. There are plenty of other enforcement standards, such as public use for recreation or use by farmers for irrigation. The guidance and proposed rule-making that now jeopardize headwater streams and wetlands across America are payback for the polluters who contributed to the Bush campaign. Agribusiness, including the logging industry, gave Bush $2,687,275. (They tossed Al Gore $313,925.) The construction industry, including home builders, gave Bush $4,175,256, Gore $1,050,902. Coal-mining companies gave Bush $108,821, Gore $16,450.
Even Bush's own Justice Department finds the administration's guidance document illegal. Since the Supreme Court decision, 17 lower courts have ruled that isolated wetlands and intermittent and underground streams must be protected under the Clean Water Act, and in the five cases in which conservative courts have supported some or all of the administration's new, broader interpretation, the Justice Department is vigorously appealing three and holding off on a fourth until a similar case can be decided.
BEFORE THE ADMINISTRATION'S imaginative interpretation of the Supreme Court decision, PCS couldn't destroy even an isolated wetland without a special permit from the Army Corps of Engineers. The Florida Department of Environmental Protection (DEP) still has jurisdiction over most isolated wetlands, but its enforcement record is abysmal. Julie Sibbing, wetlands policy specialist for the National Wildlife Federation, describes the state's regulations for wetland mitigation as "a joke." The streamlining of mine expansion by federal abdication is "as ugly as it gets," she says.
I had arranged to tour the mine with Stan Posey, the PCS official who deals with state and federal wetlands regulations. Posey is proud of what his company does to patch up the earth after it has torn out the phosphate ore, and he was eager to show me some of the repair work. But the day before our appointment he phoned to tell me that the big bosses in Chicago and Saskatoon had decided the tour couldn't happen. There hadn't been enough advance notice, one of them explained when I called to complain. I'd caught them off guard. They were having this important conference....
So 40 miles north of the mine, at Valdosta, Georgia, I hired a Cessna 172, inviting as my guides Svenn Lindskold, who heads the 300-member Save Our Suwannee, and Frank Sedmera, chairman of the Four Rivers Audubon Society. Once we were over the mine, it became obvious that it was too vast for Posey to have shown me what it was like from the ground even if he'd wanted to. As far as we could see, the lush, green face of northern Florida -- "overburden," as defined by PCS -- had been disturbed or peeled away, revealing mud, dirt, pits, and waste piles. A dragline -- one of four -- bit into the earth with a bucket the size of a two-car garage.
The overburden, only 7 percent of which is phosphate rock, is mixed with water and piped as slurry to separation facilities. Eventually, the phosphate gets mixed with sulfuric acid at two on-site chemical plants, a process that produces phosphoric acid (used in fertilizer, animal feed, and other products) and gypsum. The gypsum is radioactive enough to be shunned for major commercial uses and acidic enough to kill most of the plants that try to grow on it. So PCS discards almost all of it, piling it into rectangular stacks thousands of feet on a side and at least 100 feet high. Eventually, says Stan Posey, the stacks will be reshaped and vegetated, but in two hours of flying we didn't see that kind. Other waste products -- mostly clay and sand -- are piped into giant lagoons, called slime pits by most everyone but PCS, which calls them "clay settling areas." Plumes of gray water, fading in color as the waste settled, fanned out from the pipe outlets.
About a third of the project area's 100,580 acres are -- or were -- in wetlands. But for every wetland acre a company destroys, Florida DEP requires it to "create" another. So, according to the state, PCS, and a large element of the general public, there's no problem. For both isolated and nonisolated wetlands there is supposedly "no net loss." PCS gets "mitigation" credit from the state for real wetlands it destroys by reshaping its slime pits and planting trees around the edges. The projects I saw were certainly an aesthetic improvement; but few if any sustain wetland plants and wildlife, purify runoff, or recharge groundwater the way real wetlands do. Basically, they're water-retention basins. So are most of the other holes that state and federal agencies require extractive industries to dig as "wetland mitigation."
There are indeed such things as man-made wetlands that work. However, they are exceedingly rare and almost never designed by engineers and bureaucrats. Only God or a very smart soil scientist can make a real wetland. One study found that no more than 5 percent of the wetland-mitigation projects in Florida could be called successful, and the General Accounting Office reports that nationwide, 80 percent fail. Even if you assume that wetland replication works, the United States loses 58,500 acres of wetlands each year.
Back on the ground, we inspected as much of the PCS mine as we could gain legal access to. We got up-close looks at attractive, rehabilitated slime pits where willows were supposed to have been shaded out by planted cypress, except the cypress weren't cooperating. "Will these ever be forested wetlands?" I asked Sedmera.
"I don't know," he answered. "You and I won't live long enough to find out. Wetland rehabilitation [he and Lindskold refuse to call it restoration] is all one vast experiment." Forested wetlands, said by PCS to have been "restored," were shadeless tangles of parched deadwood. Near one of these I stopped the car to move a gopher tortoise off the asphalt. Time may be running out for this state-listed species of special concern. And from what I've seen of wetland "restoration" in Florida and elsewhere, I can't claim to have even a little faith that PCS will rebuild the wetlands (and uplands) around which gopher tortoises feed and dig their burrows to the species' liking.
THE NEW GUIDELINES and proposed rule-making are just part of a larger offensive on the Clean Water Act. The statute contains a provision -- never implemented -- that would have gone a long way toward controlling the "nonpoint pollution" from such sources as agriculture and city streets. The Total Maximum Daily Load (TMDL) program, which deals with nonpoint pollution, is a commonsense approach requiring pollution to be limited so that a stream is no longer "impaired." At the behest of agribusiness and the timber industry a reasonably effective TMDL rule, promulgated by Clinton's EPA, was neutralized April 2, 2003, by the Bush administration. Bush's EPA proposes to redefine "impaired" waters as clean and to preserve the status quo by letting the states -- which had ignored the TMDL program -- worry about discharges.
And surviving Clean Water Act provisions aren't being enforced. According to EPA documents obtained under the Freedom of Information Act by the U.S. Public Interest Research Group, nearly 30 percent of the largest municipal, industrial, and federal facilities were in serious violation of pollution permits at least once between January 2000 and March 2001. The response of the Bush administration was to cut the EPA's enforcement budget.
Last December -- after intense pressure from the National Chicken Council, the National Turkey Federation, the National Pork Producers Council, the National Cattlemen's Beef Association, and the American Farm Bureau Federation -- Bush's EPA hatched a new rule for manure disposal at factory farms. Permits for dumping manure on land, even where it runs into streams, can now be written by the feedlot owner with no public or governmental oversight or review. And, provided the feedlot operator has written a permit for himself, there are no federal consequences for fish kills and other environmental damage.