In March 2021 the Army Corps of Engineers initiated a formal “consultation request” with two federal agencies responsible for environmental review of the megayacht marina project proposed by the Summers End Group (SEG) for Coral Bay, St John. Last week those agencies ended their review without reaching any conclusions due to “non-response” by the Summers End Group, another example in the years-long history of delays and inadequate responses by SEG to federal information requests.

A snapshot from the NOAA “Environmental Consultation Organizer” website is shown in the image below:

Under federal law, before the Department of the Army can issue a permit for construction in the waters of the US, the Corps needs to determine that the “action” (i.e. granting of a permit) is consistent with the Endangered Species Act and the Magnuson-Stevens Fisheries Act (among other things). The procedure for making this determination is to refer the permit application and all of the relevant studies, documentation and analysis provided by the applicant and others to the responsible federal agency for agency review of project impacts and, when appropriate, proposed mitigation. This is known as a “formal consultation” under Section 7 of the Endangered Species Act or the Magnuson-Stevens Act.

In the case of threatened and endangered species in the water, the responsible agency is a division within NOAA National Marine Fisheries Service (“NMFS”) known as the “Protected Resources Division” or PRD. For the Summers End Group project NMFS PRD is reviewing impacts to protected coral species and protected sea turtles.  The agency responsible for reviewing impacts to critical habitats (such as sea grass beds and coral substrate) is NMFS Habitat Conservation Division or HCD.

After receiving the March 2021 consultation request the NMFS agencies reviewed the materials provided by the Army Corps and the submissions from Summers End, and determined that the information provided was inadequate to assess impacts on protected resources (both species and habitats). In August the agencies sent requests for additional information to the Army Corps, which the Corps then communicated to Summers End in a letter on September 13, 2021. As of October 25, 20201, Summers End Group had not sent any response to the Army Corps Sept 13 request for additional information.

During the last week of October 2021 the NOAA NMFS Protected Resource Division updated the Summers End consultation status from “open” to “CLOSED” and the reason given was “action agency non-responsive”. This means that NMFS PRD has closed their review without reaching any conclusions because they have not received the information they require in order to complete the Summers End Group project review (the “action agency” is the Army Corps, but the Army Corps’ response to the agencies is dependent on the Summers End response to the Corps).

This isn’t the first time that the Summers End Group’s failure to respond in a timely manner has resulted in closure of agency consultations. The first formal consultation by the Army Corps was initiated in July 2018. This resulted in a “Request for Additional Information” (“RAI”) from the NMFS agencies in September and October 2018. The agencies formally closed the consultations due to non-response in December 2018. Summers End did not respond to that RAI until May 2020, and the Corps did not re-initiate formal consultation until March 2021. So the time period between the closing of the first consultation (December 2018) and the reopening of consultation (March 2021) was over two years.

What does this mean? We can anticipate that Summers End will, at some point, send a letter to the Army Corps requesting “additional time” to respond to the Corps and agency information requests. In the past the Corps has responded to those letters by placing the permit review “in abeyance” until the requested information is provided. In the past this has resulted in multi-year delays in the Army Corps permit review process. Will the Corps do the same thing this time, or will they take more direct action to close the review of the Summers End permit? We will be watching closely and will, as always, keep everyone apprised of any change in status.

For a complete timeline of the Summers End Group seven year permit review with the Army Corps of Engineers, click on this link – https://SaveCoralBay.com/seg-usace-timeline – and for a timeline of the SEG CZM permit review click on this link – https://SaveCoralBay.com/czm-timeline.