Following the hectic events of 2014, the new year of 2015 brought with it new challenges.  The processing of the CZM permit had been “stayed” – placed on hold – through the filing of the two appeals with the Board of Land Use Appeals.  However, in early 2015, the United States Army Corps of Engineers published a “Public Notice” for the Summers End Group project, setting off a six-month effort to place expert comments into the federal administrative record.  We were truly blessed to have the experience, tenacity, and management skills of Attorney Robb Fox to coordinate these efforts.

Before getting into the details, some general background on the federal permitting requirements for a project such as the Summers End marina is in order.  In 1899 the US Army was granted authority to review and approve all projects involving placement of structures in the “Waters of the US.”  This authority, known as the 1899 Rivers and Harbors Act, was intended to prevent private construction from impeding the movement of federal troops by blocking waterways, etc..  The specific authority is known as “Section 10 of the Rivers and Harbors Act” and it clearly applies to a project such as the SEG marina.

The second authority derives from the Clean Water Act (“CWA”), which is intended to prevent pollution from entering any water body of the US (and the territories).  Under most circumstances the US Environmental Protection Agency has primary authority under the CWA, however, when the affected water body is within navigable waters of the US, and the project may involve the “discharge of dredge or fill materials” then the Army Corps is the designated permitting authority under the CWA.  This is known as a Clean Water Act Section 404 permit.

Although the SEG project has never involved dredging, the placement of over a thousand pilings, and the associated disturbance and changes to the seabed, are sufficient to trigger review under Section 404.

In January 2015 the US Army Corps of Engineers (“USACE”) published the first of two Public Notices for the SEG project, inviting public and government agency comments during a 45-day comment period.  The January 2015 Public Notice stated that the project was being reviewed under Section 10 of the Rivers and Harbors Act and Section 404 of the Clean Water Act.

To say the Army Corps permitting is complex would be a gross understatement.  The Corps must comply with a laundry list of federal statutes and regulations before approving any permit.  In the case of the SEG project the most relevant statutes include the Endangered Species Act, the National Historic Preservation Act, the Magnuson-Stevens Fisheries Act, the Clean Water Act, the National Environmental Policy Act, and perhaps most importantly, the federal Coastal Zone Management Act.  It isn’t a simple process.