A state DEP official, two counties and phosphate companies oppose protected status for the waterway.

For such a small stream, Horse Creek is giving the state Department of Environmental Protection a big headache.

The sandy-bottomed rivulet flows 40 miles south through Hardee and DeSoto counties, draining parts of Polk, Manatee and Hillsborough until it joins the Peace River north of the Charlotte-DeSoto county line.

The creek is remarkably clean, so clean that one water official observed that the Peace River – which provides drinking water for 70,000 utilities customers – is “barely acceptable for water supply purposes . . . until the waters of Horse Creek enter it.”

But is purity enough to make Horse Creek an Outstanding Florida Water, eligible for special protection from potential polluters? So far DEP’s answer is no, but that could change.

Five years ago Alan Behrens, president of DeSoto Citizens Against Pollution, nominated Horse Creek, its tributaries and all its wetlands for the Outstanding Florida Waters program. He noted not only its purity but also its recreational value and wildlife population.

Giving the creek Outstanding Florida Waters status would mean polluters would not be allowed to degrade its water quality.

Busy DEP officials did not get around to considering the nomination until last year. During the delay two phosphate companies – IMC-Agrico, the biggest in the world, and Farmland-Hydro LP – announced plans to open three new mines near the creek.

When the DEP finally held public hearings on Horse Creek, phosphate company officials warned that giving special protection to the creek would prevent them from mining, costing them billions. Commissioners in both Hardee and DeSoto counties, fearing the loss of the phosphate business, voted to oppose the protection.

Last month, DEP staffer Eric Shaw recommended the state reject Horse Creek. After visiting the creek three times, Shaw wrote that it is not outstanding.

“For a person who canoed down the creek,” Behrens said, “he obviously didn’t see the beauty around him.”

To Shaw, it was a matter of weighing the benefits of special protection of the creek against the costs. Recreational use is limited by a lack of public access, he said. The wildlife, while abundant, includes no verified populations of threatened or endangered species. And losing the mines could cause “severe economic effects,” he wrote in a June 8 memo.

Shaw’s recommendation has thrown the state’s environmental regulators into a quandary.

Normally after a waterway undergoes hearings for Outstanding Florida Water status, the DEP forwards the recommended approval to the Environmental Regulatory Commission, a seven-member body appointed by the governor.

In the 20-year history of the Outstanding Florida Waters program, no waterway that made it to the hearing stage has been recommended for rejection. Now no one is sure what the next step should be.

DEP Secretary David Struhs said last week that he may overturn Shaw’s recommendation. If he does not, then he could let Shaw’s recommendation be the last word or send it to the ERC anyway. He said he will decide what to do by sometime in August.

“I’ve got a staff recommendation that I take very seriously, because those are the folks that know the issues,” Struhs said. “But the community is split, which demands we take a closer look.”

Behrens and ManaSota-88 attorney Tom Reese are urging the state to do whatever it can to protect Horse Creek.

“Horse Creek is the most ecologically significant tributary to the Peace River,” Reese, a St. Petersburg lawyer, wrote to Struhs. Its purity makes it a benchmark against which other water bodies can be measured, he wrote.

And protecting the creek should have no impact on IMC-Agrico and Farmland-Hydro’s plans to mine near the creek because they would not need to discharge any pollutants into it, he contended.

In Charlotte County, where commissioners strongly support protecting the Peace River’s tributaries, officials have suggested the state could protect the creek by buying a mile-wide corridor along it.

The only problem is the phosphate companies do not want to sell. Without that mile-wide corridor, explained IMC-Agrico Vice President Lee Thurner, “there would not be enough left of our reserve to bother with.”

For IMC-Agrico, the two mines it wants to open by 2003 are the future of the company. IMC’s other mines are starting to play out, so it must move on to new sites.

“If we go away,” Thurner said, “40 percent of the Florida phosphate industry goes with us.”

If the Outstanding Florida Water designation were limited to the creek itself, excluding its tributaries and wetlands, Thurner said, that would make the situation “less onerous.” But the company would still oppose it, he said, because the law on Outstanding Florida Waters is too vague.

Mining opponents “will seize on those uncertainties to sue and stop the mining,” Thurner predicted.

Behrens, who lives on the creek near Arcadia, insisted that his push to protect the creek has nothing to do with opposition to the mines.

“I don’t like phosphate, but that’s not our purpose,” he said. “We simply want to protect the creek.”

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