Summers End Group – US Army Corps Permit History

Last week I wrote about the path taken by the Summers End Group in obtaining a Virgin Islands Coastal Zone Management permit for the construction of a mega marina in Coral Bay. That unorthodox and most likely illegal path was characterized by conflicts of interest, political pressure, administrative appeals, and ultimately a vote of a lame duck Legislature to approve a highly flawed CZM permit and Trust Land lease. It didn’t need to be that way.

The Coastal Zone Management Act is the first line of defense protecting our coastal resources from environmentally damaging development. The CZM Act is designed to balance utilization with protection so that projects which are ultimately approved within Tier One of the coastal zone are ones which enhance the economy while limiting damage to the environment. For a large commercial project like the Summers End Group mega yacht marina, this is a complex balancing act that should involve detailed study, planning, and expert evaluation. And it also involves time.

Unfortunately none of that took place with the Summers End Group CZM permit application. That application went from submission in March 2014 to a completeness determination by DPNR in June 2014, a record time of only three months. Permits for private homes routinely take many times longer than that to be deemed complete. For a marina of this scale to be signed off by DPNR in three months is nothing short of negligent.

In October 2014, just three short months later, two members of the St John CZM Committee had voted to approve the permit, with a third member – Brion Morrisette – not voting due to a conflict of interest. This approval was in spite of extensive public opposition, without any meaningful habitat studies, and with a cursory examination of critical resource impacts. What followed was six years of appeals and lawsuits, without any further environmental review, ultimately leading to the Legislature’s vote of approval in December 2020.

In contrast to the Virgin Islands CZM review of the Summers End Group project, the federal review by the United States Army Corps of Engineers and other involved federal agencies has been conducted in a thoroughly professional, scientific, unbiased and comprehensive manner. In this note I will review the steps which have been taken by the Army Corps, by the Applicant (Chaliese Summers), by the public, and by the federal agencies during the seven years this permit application has been under review.

The review is organized as a time line, and each step of the process can be researched in greater depth by following the links to the underlying documents for that step. There is a different page for each year (2014-2021) and you can easily navigate between years using the links at the top of the page.

If you are interested in just one event on the timeline you can click on that item in the list to jump to that section. Alternatively you can simply read through the entire story, which is still unfolding …

Background – When is an Army Corps Permit Required?

The requirement to obtain federal authorization for a marina project such as the Summers End Group marina in Coral Harbor is triggered by two federal statutes.

First, in 1899 the US Congress enacted a law stating that construction in the navigable waters of the United States is illegal unless it has been authorized by the Department of the Army. This provision is known as “Section 10 of the 1899 Rivers and Harbors Act” and a marina clearly requires permitting under Section 10.

Second, the 1972 Clean Water Act gives the US Environmental Protection Agency (“EPA”) broad powers to regulate the discharge of pollutants into the waters of the US. Specifically, Section 404 of the Clean Water Act regulates the discharge of dredge or fill materials and prescribes criteria that must be met in order for this activity to be permitted. Since construction projects in navigable waters require Department of the Army permitting under Section 10, in most cases the Army Corps administers both the Section 10 permit process as well as the Section 404 Clean Water Act permit process under delegated authority from the EPA. However, although the EPA has delegated Section 404 permitting authority to the Army Corps, for certain activities in certain bodies of water the EPA retains ultimate approval power. This will later become important for the Summers End project.

The Army Corps of Engineers Review Process The process by which the United States Army Corps of Engineers (“USACE”) determines whether or not to issue a permit involves a highly complex and consultative deliberation governed by multiple federal statutes and regulations. As stated previously, Department of the Army permits for private projects are typically issued pursuant to two federal authorities: Section 10 of the 1899 Rivers and Harbors Act, and Section 404 of the Clean Water Act. The review process for both of these authorities is very similar and is typically done as a single unified review. Fundamentally, USACE cannot issue a permit unless the project is compliant with a long list of federal statutes. These statutes include:

Federal Coastal Zone Management Act of 1972
Section 401 of the Clean Water Act of 1972
National Historic Preservation Act of 1966
Endangered Species Act of 1973
Fish & Wildlife Act of 1956
Migratory Marine Game-Fish Act
Magnuson–Stevens Fishery Conservation and Management Act of 1976
Marine Mammal Protection Act of 1972
Fish & Wildlife Coordination Act of 1934
Clean Air Act of 1970
Resource Conservation & Recovery Act of 1976
Comprehensive Environmental Response Compensation and Liability (Superfund) Act of 1980

Since these statutes are administered by different federal agencies (e.g. EPA, FWS, NOAA) the role of the Corps, as lead agency in the review, is to coordinate with the other involved agencies to create a unified response to a permit application. The process of permit acceptance, solicitation of public comments, review of comments, consultation with agencies, and final permit decision, is specified in the Code of Federal Regulation Section 325 for Department of the Army Permits. This section is written to comply with the National Environmental Policy Act (or NEPA) which provides the overall framework for environmental review of federal actions.

Next Page: SEG USACE History – 2014

Save Coral Bay

An Information Resource about the Proposed Summers End Group Marina in Coral Bay, St John

Summers End Group – US Army Corps Permit History