A lot happened in 2015. The year started with the first Public Comment Period for the Summers End Group permit application. A coordinated effort among multiple community groups, assisted by our pro bono federal lawyers, generated an unprecedented level of comment and feedback to the Corps. Federal agencies weighed in with their very substantial concerns and opposition to the project. A second comment period, a visit by the Corps to Coral Bay, all led up to the culminating event – an extensive letter of deficiencies transmitted to Summers End in October.
If you are interested in just one event on the timeline you can click on the item below to jump to that section. Alternatively you can simply read through the entire story of 2015 …
- Background: Army Corps Permits
- 2014: The Year it All Started
- 2015: The Public and Federal Agencies Weigh In
- January 7, 2015: First Army Corps Public Notice
- January 2015: Unprecedented Public Opposition Submitted to Army Corps
- March 3, 2015: Coral Bay Community Council Responds With Extensive Documentation and Expert Reports
- February/March 2015: Five Federal Agencies Submit Comments to Army Corps Objecting to the Summers End Group Marina
- March 3, 2015: US EPA Designates Coral Bay an Aquatic Resource of National Importance and Advises Army Corps to DENY the Summers End Group Permit
- March 17, 2015: Boating Infrastructure Grant Award Rescinded
- April 9, 2015: Summers End Group Required to Resubmit New Permit Application
- May 2015: Summers End Group Submits THIRD Army Corps Permit Application
- June 2015: Third Permit Application Deemed Incomplete
- July 2015: Army Corps Publishes Second Public Notice for Comments
- August 2015: Comments Received During Second Public Comment Period
- October 3, 2015: Army Corps Visits Coral Bay After Public Comment Period
- October 22, 2015: Army Corps Transmits Extensive Request for Additional Information to Summers End Group
- November 3, 2015: Summers End Permit Review Put Into Abeyance
- 2016: No Response from SEG …
- 2017: The Year of the Hurricanes … And Summers End Responds to Army Corps
- 2018: Army Corps Initiates Consultation With Federal Agencies
- 2019: Agencies Request Additional Information to Initiate their Reviews
- 2020: Federal Agencies and Army Corps Still Waiting for Adequate Responses
- 2021: Major Developments – Historic Shipwreck and Extensive Deficiency List
January 7, 2015: First Army Corps Public Notice
After reviewing the second permit application and deeming it complete, the Army Corps project manager at the time – Mr. Johann Sasso – prepared a draft Public Notice and circulated it for approval with the Applicant and other Army Corps staff. That first Public Notice was officially posted on January 7, 2015. It provided an overview of the project, based solely on the Applicant’s submissions (standard operating procedure). It provided some graphic components, such as the site overview and basic schematics. The public was invited to provide comments during a 30-day period.
January 2015: Unprecedented Public Opposition Submitted to Army Corps
The public response to the January 2015 Public Notice was incredible. Responses were so extensive that the Corps ultimately extended the comment period for an additional 30 days. The facts and figures of the public reaction tell the story of how strongly people were opposed to the concept of a mega yacht marina taking over the waters of Coral Bay. By the end of the comment period the Corps had received:
- Letters from over 13,000 individuals all opposed to the marina on a wide variety of grounds, including environmental, economic, social, navigational, historic, and aesthetic impacts.
- A petition signed by over 5,000 individuals all opposed to the Summers End Group marina.
- Well over a thousand individual requests for a public hearing on the permit application.
- A file of press clippings covering the past six months, including feature articles, op-eds and letters to the editor, all voicing public opposition to the project.
- Letters of opposition from a wide range of local, regional and national organizations, including:
- St John Historical Society
- Island Green Living Association
- Friends of the Virgin Island National Park
- Virgin Islands Conservation Society
- Coral Bay Community Council
- St John Yacht Club
- Coral Bay Yacht Club
- Virgin Islands League of Woman Voters
- National Parks Traveler
- National Parks Conservation Association
- Mission Blue
- Center for Biological Diversity
- Island Resources Foundation
March 3, 2015: Coral Bay Community Council Responds With Extensive Documentation and Expert Reports
Late in 2014 the Coral Bay Community Council (“CBCC”) was contacted by Attorney Robb Fox, from the nationally recognized environmental law firm of Manko, Gold, Katcher and Fox. Attorney Fox generously offered to assist the CBCC in putting together an appropriate response to the Army Corps of Engineers, on an tntirely pro bono basis. In addition to Manko, Gold, we were contacted by the law firm of Sive, Paget and Riesel who also offered their services, pro bono, on environmental issues. These two law firms are in the top tier of national environmental law practices.
With the invaluable assistance of Robb Fox, Jonathan Rinde, Mark Chertok and Maggie MacDonald, the CBCC put together a comprehensive response to the Public Notice for the Summers End Group marina. It was a monumental effort, culminating in the delivery of two volumes of comprehensive commentary delivered to the Army Corps in early February 2015. The CBCC response included:
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- A 20 page cover letter outlining the key legal and policy reasons the permit should be denied.
- Expert reports from five highly acclaimed experts covering Economics, Fish Habitat, Endangered Species, Water Quality, and Navigation.
- Detailed comments submitted by local experts, including the CBCC itself.
- Full scale renderings of the proposed project, in correct context.
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February/March 2015: Five Federal Agencies Submit Comments to Army Corps Objecting to the Summers End Group Marina
In addition to the extensive public comment, all of the involved federal agencies responded to the Army Corps with serious reservations, or outright objections to the Summers End Group project.
- The United States Environmental Protection Agengy stated that the waters of Coral Bay are an “Aquatic Resource of National Importance.” This designation means that any permit application in Coral Bay may be subject to a higher level of Army Corps review, and that the EPA has ultimate veto power over a Department of the Army permit if the EPA is not satisfied with the recommendations of the Corps. The EPA’s recommendation was explicit – they said “After reviewing the available data, the U.S. Environmental Protection Agency (EPA) believes that this project will result in significant impacts to aquatic resources of national importance. EPA thus strongly recommends the denial of a Department of the Army permit for this project.
- The National Marine Fisheries Service (NMFS) is a division within the National Oceanic and Atmospheric Agency (“NOAA”). Within NMFS, the “Habitat Conservation Division” (“HCD”) is responsible for conservation of Essential Fish Habitat (EFH) which includes sea grasses and other submerged aquatic vegetation. After analyzing the available information on probable impacts to Essential Fish Habitat, the NMFS letter states “In addition to the impacts to Aquatic Resources of National Importance, NMFS concludes the docking structure construction, mooring facility, and upland development will adversely impact EFH. Section 305(b)(4)(A) of the Magnuson-Stevens Act requires NMFS to provide EFH conservation recommendations when an activity is expected to adversely impact EFH. The Department of the Army shall not authorize the project as proposed.”
- NOAA Protected Resource Division (“PRD”) is responsible for the protection of marine endangered species under the federal Endangered Species Act (ESA). Their comments concerned the lack of information provided by the applicant to assess potential impacts on endangered species. They said “After reviewing … the Environmental Assessment Report (EAR) prepared for the project, we continue to be unable to determine the potential extent of project impacts to (endangered species)“. They then say that “sea turtles are known to use Coral Bay … but, despite several requests, no sea turtle surveys have been conducted for the project.” They were also concerned about construction impacts – “quantification of potential acoustic impacts to sea turtles given that 1,333 piles will be driven in order to construct the proposed facilities” and in summary they expressed concern about “the potential extent of impacts to ESA resources due to the introduction of up to 235 new vessels to the area given the locations of ESA listed corals, acroporid coral critical habitat, and habitat for ESA listed sea turtles, as well as the presence of ESA listed sea turtles.
- The Superintendent of the Virgin Islands National Park wrote “What is most disturbing … is the complete lack of consideration given by the applicant to the potential negative cumulative impacts to Park and Monument resources caused by the increased vessel traffic associated with the marina. There is no evidence of consideration or thought given to impacts on water quality, marine resources, wetlands (mangrove areas), coral reefs, sea grasses, fish and marine invertebrates and species of concern protected by the Endangered Species Act. There is no indication of consideration of impacts to Park and Monument soundscapes, lightscapes or cultural and archaeological resources; not to mention visitor use and experience. Given that the applicant indicates that the single most important reason for locating the marina in Coral Harbor is the proximity of Park and Monument resources, I would ask that your office not issue a permit until the impacts on these critical resources are adequately considered with mitigation for negative impacts identified and required as a condition of this permit.”
- The US Fish and Wildlife Service cited numerous deficiencies in the application documents. They wrote “The project drawings are limited to the marina structure and dimensions are not given for the overall footprint. Information is not provided on the area to be occupied by the various mooring fields and engineering drawings are not provided for the mooring system. ” They cited the shark nursery as a concern: “The bay is recognized as a shark nursery with documented use by blacktip, lemon and nurse sharks which utilize this area to bear their young. This type of shark pup habitat is very important in maintaining a healthy population of these species.” The impacts on water quality were a particular concern: “removal of sea grass during construction, increased sedimentation and decreased water quality, shading, possible leaching of bottom paint, leaks of petroleum products, marine debris and other contaminant releases.” Based on these and many other concerns, US FWS concludes “We believe the direct and indirect impacts of this project have not been adequately assessed and mitigated. We recommend that the Corps place this permit application in abeyance until our concerns have been met.”
March 2015: US EPA Designates Coral Bay an Aquatic Resource of National Importance and Advises Army Corps to DENY the Summers End Group Permit
The letter from the United States Environmental Protection Agency (“EPA”) is worth discussing in more detail. When Congress enacted the federal Clean Water Act it entrusted the EPA with the authority needed to protect water quality throughout the “waters of the US.” Although this authority typically applies to rivers, streams, lakes and watersheds, it also applies to tidal wetlands and nearshore marine habitats. There is a particular provision of the Clean Water Act – known as Section 404 – that regulates the disposal of dredge and spill materials, with particular emphasis on wetlands. In Section 404 all wetlands are referred to as “special aquatic sites.” This includes marshes, nearshore submerged aquatic vegetation, seagrass meadows, and similar habitats.
Although the EPA delegated authority to the Army Corps of Engineers to administer the permitting standardsof Section 404 of the Clean Water Act, it reserved for itself final decision-making authority in particularly sensitive aquatic sites. This reservation of authority was enshrined in a Memorandum of Agreement between the EPA and the Army Corps signed in 1992.
The Memorandum of Agreement stipulates that certain sites, known as “aquatic resources of national importance” (or “ARNI”) are subject to a higher level of review and approval than all other sites. Whereas the Army Corps has the authority to approve a Section 404 permit for most sites, in an aquatic resource of national authority the EPA reserves the right to determine whether or not a permit can be approved. This is known as the “veto right” of the EPA for these sites, because the Army Corps must comply with the EPA recommendations and if they do not, they EPA can veto the Army Corps permit.
On March 3, 2015, the EPA wrote to the Army Corps and provided comments on the proposed marina in Coral Bay. In this letter, signed by EPA Region 2 Regional Administrator Judith Enck. In this letter, the EPA declared that, because of its unique and threatened resources, Coral Bay is an Aquatic Resource of National Importance. The letter then went on to reference the 1992 Memorandum of Agreement between the Army Corps and the EPA and stated that the recommendation of the EPA was to deny the permit requested by the Summers End Group.
This strong statement by the EPA will be a major stumbling block not only to the Summers End Group, but to any entity wishing to construct a major commercial marina within the waters of Coral Bay.
March 17, 2015: BIG Award Rescinded
The events in March 2015 surrounding a Boating Infrastructure Grant (“BIG”) given to the Summers End Group date back to late 2013. The United States Fish and Wildlife Serve (“FWS”) administers a program to provide enhanced marine infrastructure for boating and fishing, funded by fees collected by the FWS. In 2013 the Summers End Group applied for a grant under this program, and they proudly announced late in 2013 that they had been awarded a grant in the amount of $1.3 million.
However, apparently not everyone involved in the grant application – which included DPNR, Chaliese Summers, her advisors and consultants – read all of the “fine print” accompanying the grant application. According to the federal regulations governing the BIG program, a project is NOT eligible for funding “if you propose to: … Significantly degrade or destroy valuable natural resources or alter the cultural or historic nature of the area.” Based on the extensive feedback from the public and other federal agencies, the USFWS eventually realized that the Summers End Group project should NOT have received the 2013 BIG grant, and in March 2015 this grant was rescinded.
The letter from the USFWS cited public input as a significant factor in reaching their determination to terminate the BIG award to the Summers End Group.
April 9, 2015: Summers End Group Required to Resubmit New Permit Application
Following the recission of the USFWS Boating Infrastructure Grant from the Summers End Group the authorities of the involved federal agencies changed. When the USFWS was funding a portion of the project they took on the role as “lead agency” for the environmental reviews under the National Environmental Policy Act (“NEPA”). Once they withdrew funding that role was passed back to the Army Corps
In early April the Corps notified Chaliese Summers that she would need to submit a new permit application. The reason given by the Corps was the changed in lead agency status. There were other reasons however – including the fact that ALL of the public and federal agency comments submitted to the Corps in January and February had been lost when a computer crash wiped out the hard disk where those comments were stored (apparently without backup).
Regardless of the actual reasons, Chaliese Summers was told she needed to start over with a new permit application, a new completeness determination, a new public notice, and a new public comment period. Needless to say she wasn’t particularly happy about this, as evidenced in an email from the SEG environmental consultant – Amy Dempsey – to Mr. Jose Cedeno-Maldonado, the newly assigned project lead for the marina project.
May 30, 2015: Summers End Submits Third Army Corps Permit Application
The events of March and April 2015 (USFWS rescinding grant, and USACE losing all public comments) precipitated the need for a third permit application from the Summers End Group. The new application was filed on May 30, 2015, and the main difference between this application and the prior one was that the 75-position mooring field was removed in the May 2015 permit application. However, through some sleight of hand, this mooring field appears to have reemerged into the Corps review years later …
June 19, 2015: Third Incompleteness Letter from the Army Corps
As with the two prior permit applications (April 2014, September 2014), the May 2015 permit application was also deemed incomplete by the Corps due to (a) an incorrect submission procedure, (b) inadequate documentation, and (c) inadequate description of the project. One would think that by the third iteration an applicant would fully understand the very limited requirements of an Army Corps permit application …
July 9, 2015: Second Army Corps Public Notice
After SEG fixed the defects in the third permit application, USACE prepared the documentation for a SECOND Public Notice and Public Comment Period.
Since thousands of individuals had written letters during the first comment period in January 2015 – just six months prior – and since there was virtually no significant change in the proposed marina project, it was reasonable to expect that the Corps would automatically include the first round public comments in the second round review. All of the effort expended by the federal agencies, the public, the CBCC, experts, and so forth, should have needed to be repeated. We asked the Corps to please bring those comments forward into the new comment period. The unfortunate response from the Corps was that a hard disk failure had lost virtually ALL of the comments submitted to the Corps from December 2014 through March 2015 and everything would need to be resubmitted.
The effort to recreate all of the public responses, the recreate the comprehensive CBCC and expert reports, to circulate a new petition – all of this needed to be done in record time. And it was, as the next entry documents.
August 24, 2015: Second Public Comment Period Ends With Unprecedented Number of Comments to the Army Corps
The public response to the second Army Corps comment period was truly phenomenal. In total, counting the letters of the first round, over 20,000 individuals sent letters to the Corps objecting to the Summers End marina. A petition with over 8,000 signatures was included in this round of comments. The Coral Bay Community Council and Save Coral Bay updated their formal comments with extensive new analysis. The effort to submit this level of comment, from so many sources in such a short period of time was a huge undertaking. It could not have been done without the contribution of thousands of individuals, countless hours of pro bono legal assistance, and coordination by Save Coral Bay with assistance from the Coral Bay Community Council.
Our team of pro bono federal attorneys at Manko-Gold and Sive-Paget have spent countless hours revising the legal analysis accompanying the comments of Save Coral Bay and CBCC. They put together two thick binders of documents, several DVD’s, and submitted all of this prior to the end of the Public Comment period in August 2015.
The cover letter accompanying this submission provides an excellent and concise analysis of the reasons why the Corps should either outright deny the permit, or require extensive additional environmental assessment before proceeding any further with this application. Here is the letter that accompanied the formal comments.
October 3, 2015: Army Corps Visits Coral Bay and Meets With Save Coral Bay
Following the completion of the second Public Comment Period, Mr. Jose Cedeno-Maldonado requested a visit to Coral Bay to visit to project site, meet with the project proponents, and meet with the community opponents. He was accompanied by Ms. Kelly Finch on the visit which took place in the first week of October 2015.
Initially a brief 1-2 hour meeting was planned at the CBCC office, but once the information exchange began the Army Corps personnel requested that we take as much time as needed to complete our presentation. Also in attendance at this meeting were the president of Friends of the Park, and the president of the Coral Bay Community Council.
I presented a series of PowerPoint slides to the Army Corps staff summarizing the main points of public opposition and concern, and summarizing the main issues with the proposed marina. The information was very well received, and the Corps asked for copies of the presentation and background materials.
October 22, 2015: Army Corps Transmits Extensive Request for Additional Information to Summers End Group
Following their visit to Coral Bay and their meeting with Save Coral Bay, CBCC, Coral Bay Yacht Club and the National Park Service, the Army Corps sent a letter to the Summers End Group requiring them to provide extensive additional information necessary for completion of the environmental assessment for their permit application. They were given 30 days from October 22, 2015, to respond, or face a possible denial of their permit.
In addition to the 14 page letter describing the different sources of comments (Agencies, Public, CBCC, SCB) and the topics addressed in the comments, the Corps attached all of the public letters, the formal comments, and the comments of Save Coral Bay. After reading this exhaustive list of comments to be addressed by Summers End we felt confident that the Army Corps was “following the book” and performing the sort of due dilligence and environmental review that we hoped they would. This was clearly going to be a long road ahead for Summers End …
November 3, 2015: Summers End Permit Review Put Into Abeyance
After receiving the Corps’ extensive information request, Chaliese Summers wrote to Jose Cedeno and requested “additional time” to complete a response to his request. As standard procedure the Corps’ agreed to that request and placed the permit review into “abeyance” – meaning they would not expend any resource on it until the responses were received from SEG. The Corps’ also warned that if responses were not received within one year that SEG might need to resubmit a new application.
Next Page: SEG USACE History – 2016