Although 2021 is still in work in progress, there have already been several major events in the long-running saga of the Summers End Group Army Corps permit review. First, in March 2021 the Corps reissued formal consultation letters to several federal agencies, including NMFS HCD, NMFS PRD and USFWS. And for the first time (for reasons described later) a new consultation was initiated with the Virgin Islands State Historic Preservation Office (“VISHPO”) under Section 106 of the National Historic Preservation Act (“NHPA”).
Second, Save Coral Bay filed an appeal in Virgin Islands Supreme Court pertaining to the permit modifications made by Governor Albert Bryan, without CZM review or approval.
And third, in Septemeber, the Army Corps transmitted an extensive list of errors, omissions and inconsistencies in the studies and reports submitted by Summers End over the past several years. Before the year is out we hope to be able to report on one or more lawsuits reaching resolution as well.
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, which is still unfolding …
- Background: Army Corps Permits
- 2014: The Year it All Started
- 2015: The Public and Federal Agencies Weigh In
- 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, Consultations, Lawsuits and Extensive Deficiency List
- March 19-26, 2021: USACE Initiates New Consultations with NMFS HCD and NMFS PRD
- March 2021: USACE Initiates Consultation with VISHPO Under NHPA
- March 30, 2021: Local Coral Bay Family Files Lawsuit Against Summers End Group and Brion Morrisette
- ???: Shipwreck
- July 27, 2021: Save Coral Bay Files Appeal in Virgin Islands Supreme Court
- September 13, 2021: Army Corps Transmits Extensive List of Application Defects to Chaliese Summers
March 19 & 26, 2021: USACE Initiates New Consultations with NMFS HCD and NMFS PRD
The ongoing interaction between the Army Corps, Summers End Group, and the National Marine Fisheries Service is difficult to follow, to say the least. This is compounded by lengthy delays in Summers End’s responses, and periodic management changes within the Corps and agencies. However, in March 2021 the Corps reinitiated formal consultation with NMFS Habitat Conservation Division (“HCD”) and Protected Resource Division (“PRD”) through the consultation request letters shown below.
The first letter summarizes the various “back and forth” steps, as follows:
- After the Corps’ 2015 public notice and the 2015 NMFS HCD comment letters, the Corps initiated consultation with NMFS HCD on July 12, 2018 for the proposed project.
- The Corps received comments from HCD on October 25, 2018, re-iterating concerns with quantifying the impacts to essential fish habitat, additional avoidance and minimization measures by reducing the number of slips in shallow areas and use of single piles instead of finger piers and a reduction of the number of slips and vessel size, and requested additional information to fully evaluate impacts to essential fish habitat to include a geotechnical study, and raised concerns with the compensatory mitigation plan. NMFS HCD concluded that “the operation of the marina would result in increased and potentially chronic turbidity within the harbor, which could outweigh the benefits of the proposed compensatory measures.”
- The Corps requested that the applicant respond to NMFS’ comments on October 25, 2018. NMFS closed consultation with the Corps on December 6, 2018.
- NMFS and the Corps collaboratively worked with the applicant in June 2019 to develop a scoping document to address the information requested by NMFS HCD. The applicant compiled a response to NMFS HCD’s comments on December 13, 2019, which reactivated the Corps’ review of the project.
- The Corps requested information from the applicant on March 26, 2020, and the applicant provided the information to the Corps in May 2020. The Corps is thus reinitiating consultation with NMFS HCD on the project.
This is how it has been going for several years now. Summers End appears unable or unwilling to do the type of comprehensive, scientific study needed to justify their project. Their inability to respond to Corps and agency concerns has been going on now since 2015 – over six years.
The consultation letter to NMFS PRD is a very thorough description of the threatened and endangered species possibly impacted by the Summers End marina project. It is well worth reading. Towards the end the letter includes a table of protected species that are in the area and identifies the project impacts as either “LAA” (Likely to Adversely Affect) or “NLAA” (Not Likely to Adversely Affect). A second table identifies Designated Critical Habitat (“DCH”) and the same coding for impacts. These two table are shown below, and they are consistent with our long-standing understanding of the corals and turtles in Coral Bay.
March 2021: USACE Initiates Consultation with VISHPO Under NHPA
(more to come here)
March 30, 2021: Local Coral Bay Family Files Lawsuit Against Summers End Group and Brion Morrisette
Although property disputes are not an element of the Army Corps review, per se, they are significant in the overall progress (or lack thereof) of the Summers End Group marina project. In 2018 the owners of Parcel 13 Remainder (Coccoloba Plaza) filed a lawsuit against Chaliese Summers and SEG regarding their ownership rights and the validity of an expired sales contract. In March 2021 two more parcels became the subject of a lawsuit in VI Superior Court. This makes five of the seven land parcels originally claimed for development by Summers End currently either sold or in litigation.
The Clendinen family, headed by its two matriarchs, Mrs. Eglah Clendinen, and Mrs. Minerva Marsh Vazquez, filed a lawsuit against Chaliese Summers, Summers End Group, and Attorney Brion Morrisette. The lawsuit lists a long history of broken promises and failure to live up to the understanding of the property owners. It is truly a sad tale of exploitation and elder abuse. The first document below is a letter transmitted to the Virgin Islands 33rd Legislature prior to their ratification of the CZM permits for SEG, and the second is the lawsuit filed in Superior Court.
???: Shipwreck
July 2021: Save Coral Bay Files Appeal in Virgin Islands Supreme Court
Earlier this year the Save Coral Bay lawsuit in VI Superior Court was dismissed based on what we believe was a flawed argument by lawyers for the Governor and Summers End. We’ve filed an appeal in Virgin Islands Supreme Court which we hope will focus on the heart of the matter – whether the Governor was authorized under the Coastal Zone Management Act to unilaterally modify a CZM permit without any review by DPNR or CZM, and whether the Legislature acted improperly in ratifying a permit which had not been legally created. This case should be heard before the end of the year.
Although this case does not directly impact the Army Corps review, if the Supreme Court agrees with Save Coral Bay then the CZM permit for Summers End will finally be subjected to proper scrutiny and review.
September 13, 2021: Army Corps Transmits Extensive List of Application Defects to Chaliese Summers
Although we have not yet seen all of the documents, it appears that the consulting federal agencies – in particular NMFS Habitat Conservation Division and NMFS Protected Resource Division – have requested additional information from the Corps and Summers End in order to complete their formal environmental consultations. It also appears that the Corps has completed review of SEG’s “final submissions” from May 2020, and has concluded that the information provided by Summers End is inadequate on multiple fronts. The letter (below) states that the information provided by SEG is inadequate to:
- complete the required regulatory processing and evaluation of the project
- to document and ensure that the project would not be contrary to the public interest pursuant
- to resolve the U.S. Environmental Protection Agency (EPA) objections presented pursuant to both Part IV 3(a) and 3 (b) of the Section 404(q)
- to resolve the National Marine Fisheries Service, Habitat Conservation Divisions (NMFS, HCD’s) objections pursuant to both Part IV 3(a) and 3(b) of the Section 404(q)
- to complete the interagency consultation procedures required by Section 7 of the Endangered Species Act (ESA),
- to complete the interagency consultation procedures required by the Magnuson-Stevens Act,
- to complete the procedures required by the National Historic Preservation Act.
This is an extensive list of deficiencies, at least as broad as the list provided to Summers End in October 2015. It appears that the number of serious issues are increasing, rather than diminishing within the Army Corps permit review process.
On October 7, 2021, I wrote to Governor Albert Bryan Jr., Lieutenant Governor Tregenza Roach, and the Senators of the Virgin Islands 33rd and 34th Legislature informing of this development within the Army Corps review process.
The September 13, 2021 letter from the Army Corps to Chaliese Summers is shown below.
Next Page: SEG USACE – The Future