More Local Environmental Groups Look to Halt Deepening Projects in Florida
On April 7, the St. Johns Riverkeeper Inc. filed a lawsuit against the U.S. Army Corps of Engineers, seeking to review, under the National Environmental Policy Act, the Record of Decision approving the Final Integrated General Reevaluation Report II and Supplemental Environmental Impact Statement (FSEIS) for the Jacksonville Harbor Channel Deepening Study. The Complaint for Declaratory and Injunctive Relief, filed in federal court over the environmental impacts of dredging 13 miles of the St. Johns River is questioning the Corps’ assessment of the environmental consequences of the dredging and appropriate mitigation and monitoring planned for the project.
The St. Johns Riverkeeper’s statement questions the mitigation plan, which it calls “woefully inadequate,” and raises concerns about rising salinity from saltwater moving further upstream, as well as the post-project monitoring plan.
The complaint (Case No. 3:17-CV-398-J- 34MCR) also outlines failures to adequately analyze the economic need for the proposed project and an adequate comprehensive economic analysis.
The recommended plan from the FSEIS involved deepening the first 13 miles of the St. Johns River navigation channel from 40 feet MLLW to 47 feet MLLW, to build two turning basins, one 2,700 feet long by 1,500 feet wide and one 2,500 feet long and 1,500 feet wide, and to widen approximately six miles of the existing navigation channel up to 300 feet on each side.
The complaint stated that the first eight miles of dredging will occur in the Timuscuan Ecological and Historical Preserve, a marsh estuarine system. The suit also claims that “the navigation channel is critical habitat for the endangered manatee, and the area immediately off the river’s mouth, which includes the dredging spoil site, is critical habitat for the North Atlantic Right Whale, several of which have been observed within the river itself.”
Salinity is the primary factor affecting the ecology of the river, the downstream extent of submerged aquatic vegetation and the types of wetland vegetation that form the marsh communities along the river and its tributaries. The area has one of Florida’s most diverse saltmarshes on the East Coast and significant freshwater wetlands.
The suit criticizes the validity of the Corps’ models for salinity, saying they are “incompatible and produce unreliable data.”
The suit is also critical of the Corps “adaptive management” mitigation plan, which calls for monitoring after the project to determine further mitigation needs, and the decision to pursue a 47-foot depth, as opposed to 45 feet.
The Corps analyzed the economics of dredging to different depths, measured by a benefit to cost ratio (BCR). The 45-foot project had the highest BCR among 44 and 47 feet, while dredging to 47 feet had the lowest. However, the “locally preferred plan” supported by the Port of Jacksonville was selected at 47 feet.
In its suit, the environmental group uses the Corps’ study on port modernization, published June 12, 2012, titled U.S. Port and Inland Waterways Modernization: Preparing for Post- Panamax Vessels. It claims the study says the needs of post-Panamax vessels are being met in the Southeast by Savannah, Charleston and Miami ports, where deepening projects were already underway. “Whether or not JaxPort was dredged, it would neither capture nor lose any business in relation to other ports,” the suit said. It was also critical of an economic report by Martin & Associates, which it says JaxPort used to support the deepening to 47 feet.
The suit also criticizes the Corps for not performing a Keel to Mast Height study to determine if the largest vessels expected from the deepening had a low enough air draft to pass bridges.
The Water Resources Development Act (WRDA) of 1999 authorized Jacksonville Harbor to be deepened to 40 feet from the entrance channel to river mile 14.7. In 2005, the House of Representatives Energy and Water Appropriations Act, authorized deepening to 40 feet to mile 20. In 2003, a study of the harbor was authorized and eventually deepened to 40 feet along the first 14.7 miles and the rest was deepened to 40 feet in 2010. The Chief’s Report for the Jacksonville Harbor Channel Deepening Study General Reevaluation Report II (GRR II) was signed on April 16, 2014.
CORPS RESPONSE AND ADDITIONAL LAWSUITS
In direct response to the St. Johns Riverkeeper lawsuit, the Jacksonville District gave this official statement:
“We’re continuing our work on the authorized deepening project, and are closely coordinating with federal, state and local agencies. We’re aware of the litigation and refer all inquiries to the Department of Justice,” the statemetn said, along with an email address for the DOJ public affairs office, but my messages there went unanswered.
The Corps understandably cannot talk freely about a case in litigation, something the Jacksonville District is actually quite familiar with lately. It’s not the first lawsuit the district has faced recently. In August 2016, Miami Riverkeeper, the Center for Biological Diversity, the Florida Wildlife Federation, and the Diving Equipment and Marketing Association filed a lawsuit against the Corps over the Port Everglades project.
By early January 2017, Miami Waterkeeper reported that the plaintiffs had “agreed to put a temporary hold on their federal Endangered Species Act and National Environmental Policy Act lawsuit over the planned dredging. The Corps’ dredge plan failed to account for damage to nearby, fragile coral reefs. The Corps has agreed to reassess its Port Everglades environmental analysis,” according to the statement.
The Jacksonville Distrct has also long been dealing with criticism of the already completed Port Miami project and the future Port Everglades project, which is still in the study phase. In May 2016, the Jacksonville District released a statement in response to criticism about the alleged damage done from the Port Miami project and the claim that the Corps had not updated its Port Everglades studies to reflect findings from the Port Miami project. The Corps defended the science behind its Port Miami project studies, monitoring and post-dredging analysis.
When I asked about the status of the Port Everglades project in May (before presstime), the Jacksonville District spokesperson said:
“The Corps will supplement previously completed environmental information with new data gained since 2015. This new information requires the Corps to reinitiate consultation under the Endangered Species Act and for NMFS (National Marine Fisheries Service) to issue a new or amended Biological Opinion (BO) under the Act. Environmental information collection and analysis is ongoing during the Corps’ preconstruction, engineering and design phase, a three-year phase that we’re currently in.”
The Corps also said the Port Everglades study and Biological Opinion included a commitment from the Florida Department of Environmental Protection, the National Marine Fisheries Service, the Environmental Protection Agency, Florida Fish and Wildlife Conservation Commission, U.S. Fish and Wildlife Service, and Broward County jointly with the Corps. In other words, the Corps isn’t solely responsible for the environmental findings and project recommendations.
“This action represents a shift toward a greater level of interagency cooperation among the Corps and state and federal resource agencies in development of environmental monitoring measures. The interagency working group is making strides as new information becomes available,” the Corps said in a March 2017 statement about the Port Everglades project.
The Corps is also still in the study phase for the Port Everglades project. A Corps statement in March about the project said it is developing a sedimentation transport model, designed to identify areas that the project sediment might affect. That includes first fieldwork, which is ongoing, and modeling will be done from that collected data.
The final feasibility study for the Port Everglades project was completed in March 2015, the environmental impact statement in May 2015, and the final record of decision came in January 2016, which the Corps said included information it learned from Port Miami project. The project is currently in the three-year PED (preconstruction, engineering and design) phase, where more studies, research and data collection are always done.
After the hold on the lawsuit, the Miami Riverkeeper statement said that dredging for the Port Everglades project was “delayed until 2019.” However, the project began the three-year PED phase in 2016, already not scheduled to begin before 2019.
The defense of the much of the Port Everglades lawsuit, was focused on Port Miami deepening, which the Miami Riverkeeper called “disastrous for the coral reefs in the area.” The Corps argues that remains to be seen, as the agency is still studying the issue and monitoring post-construction.
When asked about the status of Miami Harbor monitoring and studies in May, the Jacksonville District spokesperson said this:
“The Corps is continuing work in partnership with National Marine Fisheries Service and Florida Department of Environmental Protection to conduct a definitive survey of the affected areas. The survey will determine the permanent, as opposed to transient, effects of the deepening project, the success of mitigation efforts to date, and the need, if any, for additional mitigation. Scientists are studying thousands of photos and videos, and hundreds of hours of dive-time observations from more than 7,000 dives.”
The environmental groups and opponents of the dredging project have widely cited a study published by the National Oceanic Atmospheric Administration (NOAA) in June 2016: Detecting sedimentation impacts to coral reefs resulting from dredging the Port of Miami, Florida USA.
The report states that the 2012 permit issued to the Corps by the EPA included biological monitoring areas adjacent to the channel along each of the six coral reef or hardbottom features. All project-required monitoring stations were located within 50 meters north and south of the channel. The two baseline surveys were conducted in August 2010 and October to December 2013. The former baseline survey included stations up to 450 meters north of the channel on the Inner Reef north, but the baseline surveys from 2013, during dredging and post-construction monitoring only extended 50 meters from the channel.
In December 2015, NOAA began field sampling, at 100, 200, 300, 500 and 700 meters from the channel, and it did find “increased sediment accumulation, severe in certain times and places, and an associated biological response (e.g., higher prevalence of partial morality of corals) extended up to 700 m from the channel.”
The study also noted that thermal stress and a coral bleaching event affected South Florida starting in the fall of 2014 also contributed to coral damage during the project period. However, the study said:
“Both bleaching and disease are documented in the time series observations of corals in both the Inner Reef north channel-side and reference populations examined in the present study. Despite these coincident disturbances, analysis of tagged coral colony condition during the course of the dredging project shows significant and large effects in terms of more severe coral tissue loss (almost 5×) and increased risk of disease and death (>double) in the immediate vicinity of the dredged channel, in comparison with project-chosen reference reef.”
CORPS RESPONSE: CONTINUED STUDIES AT PORT MIAMI
The most recent report coming from the Corps, released in April (Miami Harbor Phase III Federal Channel Expansion Project Permit No. 0305721-001-BI One-Year Post-Construction Impact Assessment for Hardbottom Middle and Outer Reef Benthic Communities at Permanent Sites) comes to some different conclusions:
“The sedimentation environment varied substantially at both channel-side and control locations over the course of project monitoring. During the one-year post-construction impact assessment surveys, channel-side sediment accumulation rates were found to be equal to or below baseline values, except during a rare weather event - Hurricane Matthew, October 9, 2016. Mean sediment accumulation rates measured over all channel-side locations were below baseline values during the one-year post-construction impact assessment survey. The sedimentation accumulation results indicate that the channel-side sedimentation environment has returned to levels observed prior to commencement of dredging activities,” the report said.
In total, the Corps report said eighty-five (85) out of 252 tagged coral colonies at control sites (33.7%) died during project monitoring. The majority (81%, 69 out of 85) died from white-plague and other concurrent diseases, followed by unidentified mortality (14% 12 out of 85) white-band disease (4%, 3 out of 85), and competition (1%, 1 out of 85).
Ninety-eight out of 224 (43.7%) of tagged coral colonies at channel-side sites died during project monitoring. The overwhelming majority of identifiable mortality (74%, 72 out of 98) died from white-plague and other concurrent diseases followed by unidentified mortality (18%, 18 out of 98), sediment burial (6%, 6 out of 98), competition (1%, 1 out of 98), and bleaching (1%, 1 out of 98) explained the remaining coral mortality throughout the project area.
The study also said six tagged channel-side scleractinian corals were buried and died as a direct result of sediment accumulation during dredging. The loss of these six corals is considered a permanent impact of the project. Those corals represent 2.7% (6 out of 224 channel-side corals) of all tagged corals at the channel-side site locations.
The Corps also said that the Florida Department of Environmental Protection (FDEP) permit authorized direct impact of 7.07 acres of reef to achieve the navigational goals of the project. The FDEP permit required 9.28 acres of artificial reef mitigation to offset these permitted impacts. Of the permitted direct impacts (7.07 acres), the post-construction survey documented direct impact of 6.88 acres. A total of 11.6 acres of artificial reef were constructed and accepted as complete by the Corps on April 22, 2015. The report said, “The addition of 2.32 acres of artificial reef habitat above the required 9.28 acres required, represents a functional gain to the system and may be considered advanced mitigation for other project related impacts.”
While I couldn’t get much from the Corps on the record regarding these projects and lawsuits, nor could I get the environmental groups to answer my questions, I’ve tried to present some of the facts and data available. What does it all mean?
The St. Johns Riverkeeper complaint has many concerns about the mitigation plan, salinity issues and economic need for Jacksonville Harbor deepening project, but the project has yet to be authorized for construction.
The concerns about salinity and modeling are disputed by the Corps. At the request of the Jacksonville District, in November 2014 the Corps Engineer Research and Development Center (ERDC) published a report and literature review of the hydrodynamic model available and how well it predicts changes in a waterbody, and what evidence of its success is available.
According to the Literature Review of EFDC Applications Demonstrating Capability for Use in the Jacksonville Harbor Feasibility Study, by Earl J. Hayter, Ph.D., the Environmental Fluid Dynamic Code (EFDC) model simulates multi-dimensional flow, transport and biochemical processes in surface water systems, including lakes, rivers, estuaries, reservoirs, wetlands and coastal regions. The report also says the model, maintained by Tetra Tech with support from the U.S. Environmental Protection Agency, has a “history of extensive use in the United States.”
The EFDC hydrodynamic model has been used on two other federal projects, the Savannah Harbor Expansion Project (SHEP) and the Charleston Harbor port expansion. EFDC is also being used for two ongoing deepening studies, the Charleston Harbor Post 45 Feasibility Study and the Seattle Harbor Deepening Project. The only post-construction monitoring study for a deepening project is the 10- year monitoring study of the water level and salinity effects in the Cape Fear River estuary due to the deepening of Wilmington Harbor, which found the models to be accurate within 0.2 feet or less.
While the model has not been used to estimate direct project impacts of a deepening project prior to construction, the Corps said the capability of ERDC to simulate hydrodynamics and transport in an estuary relates directly to ERDCs ability to estimate the impacts of a deepening project.
The accuracy of the modeling can only be tested post-construction, as they are doing now in the Port of Miami, where monitoring continues. Instead of looking at the transient effects, as did the NOAA report, more studies by the Corps will assess the permanent damage.
The criticism of the economic impact and analysis I think is the most questionable. The suit is calling attention to the Corps own port modernization study as justification against the Port of Jacksonville, and is critical of the Martin & Associates study commissioned by JaxPort, which showed significant economic impact for the area from the deepening. Nowhere in the Corps report does it say anything about the Port of Jacksonville expansion not being needed. Instead, the report says Post- Panamax sized vessels will dominate the world fleet in the future, and, “These vessels will call in increasing numbers at U.S. ports that can accommodate them.” Its also clear the expansion of the Panama Canal could change logistics chains for U.S. imports and exports.
The St. Johns Riverkeeper spoke about the Martin & Associates study, as if it was manufactured by JaxPort as PR propaganda. Martin & Associates is a well respected firm with a long history of developing economic studies for ports.
While the suit complained about the cost of the project, it called for more studies and more time and cost to taxpayers. The suit complained that the Corps cut corners and rushed the project, but it was part of the President’s 2012 We can’t Wait initiative formed to expededite infrastructure projects. Similarly, the Corps has worked hard to streamline its processes and studies to save money, not spend more.
As far as the Port Everglades suit, that seemed early for litigation. How could the Corps fully update the Port Everglades study with its conclusions from the Port Miami deepening project, when it hasn’t fully reached those conclusions yet? And the Port Everglades project is still under investigation. It has not been authorized for construction.
The lawsuit was dropped and claimed as a victory by environmentalists, but in the end, the Corps is continuing its study process as it has been, and it seems an awful lot like a manufactured victory.
I couldn’t get either side to speak directly to the science behind the claims and the project, as some of it is still under investigation, but these lawsuits cannot be helpful to the development process. They cost the Corps money to fight them in court, with little results in the end for either side.
For the Port Miami deepening project, there were environmental impacts as expected. There is no way to definitively predict what impacts some of these projects might have, because they have never been done before. Models like the ERDC model are making big strides to better predict the impacts. That’s what the Corps should be doing, creating science we can use, not fighting lawsuits in court.