HomeMy WebLinkAboutSubmittal-Michelle Metcalf-Letters of ConcernTROPICAL,
AUDUBON
SOCIETY
FRIEN SOF
BISCAY EBAY
supporting miami's aquatic preserves
May 8th, 2015
Urban
Environment
League
of Greater Miami
ecomb
Environmental Coalition
of Miami & the Beeches
Mr. Albert Gonzalez
US Army Corps of Engineers
Miami Permits Section
9900 SW 107th Avenue, Suite 203,
Miami, Florida, 33176
A
URBAN
PARADISE
GUILD
Transmitted via email to Miami Permits Section of US Army Corps of Engineers
SIERRA
CLUB
1 OUNDED 1892
RE: National Marine Manufacturer's Association Permit Application, SAJ-2014-01034 (SP-AG)
Dear Mr. Gonzalez,
The undersigned organizations and the thousands of citizens they represent, hereby submit their
comments and concerns regarding the pending permit application for the Miami Marine Stadium Site
(SAJ-2014-01034 (SP-AG). We urge you to ask for the permit to be amended because at this point in time
it is not acceptable for the following reasons:
1) The public has always had an interest in Virginia Key. In 2007, a serious threat to privatize and
develop the island emerged. Priceless environmental and cultural resources were in peril. The pubic
(including many of the signatory groups of this letter), motivated by these threats, created a transparent
public process that began with the Virginia Key Charrette, and a consensus was defined. The public
mandated that the majority of Virginia Key and its waters would be preserved or restored as habitat for
wildlife, that no major development should occur in undeveloped parts of the island, and that no new
areas would be privatized to restrict public access.
This mandate crystallized into what is now called the Consensus Master Plan, which was approved by
the City of Miami. Today, we are concerned that this site and others on Virginia Key will be closed off to
the people and won't be returned to public to use again after the event has passed. If this were to
happen, it would violate the Consensus Master Plan. Not enough information has been presented to
continue on with this project.
2) Mitigation is an action or series of actions to offset the adverse impacts that would otherwise cause a
regulated activity to fail to meet the criteria set forth in sections 4.2 (Environmental Review Criteria).
Submitted into the ptl1�c
record for item(s) Z.
15 - o b 3�1 I h U- S b rn M tt - c. h e o M e t-cco ,c - t.e j' {-(. �(S 5- i 4 0 City Clerk
Mitigation should be considered mandatory for the 268,400 square feet of temporary floating docks
and access walkaways for the National Marine Manufacturer's Association Boat Show within the
Biscayne Bay Aquatic Preserves that will be impacted during the ninety day period that the temporary
floating docks will be placed in Outstanding Florida Water per Chapter 62-302.700 of the Florida
Administrative Code because the submerged resources are at risk.
A. That the waters are of such exceptional recreational or ecological significance that water quality
should and can be maintained and protected under all circumstances other than temporary
degradation and the lowering allowed by Section 316 of the Federal Clean Water Act; and
B. That the level of protection afforded by the designation as Outstanding National Resource
Waters is clearly necessary to preserve the exceptional ecological or recreational significance of
the waters; and
C. That the environmental, social, and economic benefits of the designation outweigh the
environmental, social, and economic costs.
D. The policy of this section shall be implemented through the permitting process pursuant to Rule
62-4.242, F.A.C.\
The temporary staging of the floating docks on the marine stadium site will create new impacts, which
the US Army Corps of Engineers might consider minor but impacts to a state aquatic preserve
nonetheless. Studies have shown that constant shading will prelude any submerged aquatic vegetation
from growing' and the materials i.e. Styrofoam used to create these walkways means additional marine
debris disturbing the already sensitive resources in the Biscayne Bay Aquatic Preserves.
Florida Statute Section 258.397 for the Biscayne Bay Aquatic Preserves clearly states, "that any pier,
dock, marina or maintenance facility, navigation channel or access road must be constructed in such a
way that the project will not adversely affect water quality and utility of the preserve". The staging of
these temporary floating docks for the ninety day period within the Biscayne Bay Aquatic Preserves will
adversely affect the submerged aquatic vegetation and wildlife that live there i.e. seagrass species and
the Florida Manatee.
3) High manatee usage in the Bill Sadowski Critical Wildlife Area during the ninety -day period that the
marine stadium basin will be used should mean stricter enforcement during the construction process
and during the time of the Miami boat show. The Bill Sadowski Critical Wildlife Area is a 700-acre no -
entry zone all year round that was set aside by Florida Fish and Wildlife Conservation Commission in
the 1980s to protect extraordinary habitats such as seagrass beds and last remaining unaltered
mangrove habitat. Birds, spawning fish, inverts and the endangered manatee utilize these habitats,
managed by the Florida Fish and Wildlife Conservation Commission and Florida Department of
Environmental Protection Biscayne Bay Aquatic Preserves. 2
U
Manatees utilize the Bill Sadowski Critical Wildlife Area all year round but are most abundant from
November through April 3. They aggregate around rivers and canals like the Miami River and travel
across Biscayne Bay to the lush seagrass beds of this protected area. Its designation was in part of the
' Shafer, D. J., J. Karazsia, L. Carrubba, and C. Martin. 2008. Evaluation of regulatory guidelines to minimize impacts to seagrasses from single-family
residential dock structures in Florida and Puerto Rico. ERDC/EL TR-08-_. Vicksburg, MS: U.S. Army Engineer Research and Development Center.
2 Miami Dade County Department of Environmental Resource Management Environmental Endangered Lands Program, Miami Dade County Parks and
Recreation, and Miami Dade County Planning and Zoning. 2009. Application Cycle Virginia Key Site Evaluation.
3 Miami Dade County Department of Environmental Resource Management. 2009.Final Report Miami Dade Manatee Protection Plan Data and
Information Collection
high amount of manatee usage year round. Manatees use this protected habitat to feed, rest, mate
and calve their young. During construction of the pilings, a diver will be present to ensure that no
resources or marine life is harmed, we believe that an observer should also be above water to look out
for manatee that my come into the area. In addition, a Florida Fish and Wildlife Conservation
Commission law enforcement officer should actively patrol the area during the show to assure the
compliance of the manatee protection zones and the protection of Bill Sadowski Critical Wildlife Area
because of the 896 vessels that will be in the area all at once when the boat show is in process. This is a
sensitive area not just to manatees but also to birds that use the rookery and the pollution and noise
that can have adverse affects on their behavior to nest, forage and roost. National Marine
Manufacturer's Association should be required to provide information on manatee protection zones
and the no -entry zone (Bill Sadowski Critical Wildlife Area) since vessels travelling down to Miami are
not from the area but from outside Miami Dade County and Florida.
4) We would like to request a Public Hearing to share these concerns and allow the community to
express their opinions regarding this permit application.
Sufficient thought and review has not been put towards the National Marine Manufacturer's
Association project for the Miami Marine Stadium Site. We respectfully request for a public hearing and
for more information to be gathered before this can be approved or denied.
Sincerely,
Tropical Audubon Society
Laura Reynolds, Executive Director
5530 Sunset Drive
Miami, FL 33143
305-667-7337
director@tropicalaudubon.org
Environmental Coalition of Miami Beach
Luiz Rodrigues, Executive Director
210 Second St.
Miami Beach, Florida 33139
305-534-3825
luiz@ecomb.org
Friends of Biscayne Bay
Peter Rabbino, Treasurer
5530 Sunset Drive
Miami, FL 33143
954-937-4528
friendsofbiscaynebay@gmail.com
Friends of Virginia Key
Blanca Mesa
(305) 794-3392
blancamesa@att.net
Submitted into the public
record for item(s) 7 Z 3 on 5 Iy •1,D 1 S' City Clerk
Izaak Walton League of America, Florida Keys Chapter
Michael F. Chenoweth, President
Post Office Box 236
Homestead, Florida 33090-0236
305-442-7772
gladerunner@earthlink.net
Izaak Walton League of America, Cypress Chapter
Pamela B. Pierce, President
Post Office Box 236
Homestead, Florida 33090-0236
305-451-0993
pbpierce@evergladesia.org
Sierra Club Miami Group
Stephen Mahoney, Conservation Chair
2700 SW 3rd Ave. Suite 2F
Miami, FL 33129
(305) 860-9888
miami-conservation@florida.sierraclub.org
Urban Environment League Of Greater Miami
Greg Bush, Vice President
1000 NW North River Drive, Suite 114
Miami, FL 33136
305-926-5001
publicbush@gmail.com
Urban Paradise Guild
Sam Van Leer, President and Founder
13400 North Miami Ave
Miami, FL 33168
305-758-5119
sam@urban-paradise. g
Cc via email:
Roy Crabtree, NOAA
Virginia Fay, NOAA
Lee Hefty, DERM
Lisa Spadafina, DERM
Cynthia Dohner, FWS
Mayor Tomas Regalado, City of Miami
Mayor Carlos Gimenez, Miami -Dade County
Mayor Mayra Pena Lindsay, Village of Key Biscayne
Submitted into the public
record for item(s) 17-3
on S .14- Z0\5 . City Clerk
Everglades
Law Center, Inc.
Defending Florida's Ecosystems
and Communities
www.evergladeslaw.org
Southern Everglades and
Florida Keys Office
660 Crandon Blvd., Suite 223
Key Biscayne, FL 33149
Phone: 305-867-9338
Board of Directors
Richard Hamann, Esq.
Robert Hartsell, Esq.
Joel A. Mintz, Esq.
Karen Marcus
David White, Esq.
Executive Director
Jason Totoiu., Esq.
Senior Staff Counsel
Lisa Interlandi, Esq.
Staff Attorney
Julie Dick, Esq.
May 8, 2015
Mr. Albert Gonzalez
990 SW 1o7th Ave, Suite 203
Miami, FL 3317
Via email: albertjonzalez@usace.army.mil
Re: SAJ-2014-01034
Dear Mr. Gonzalez,
I am writing on behalf of Miami Waterkeeper and Tropical
Audubon Society regarding the permit application submitted to the
Army Corps of Engineers by the National Marine Manufacturer's
Association, SAJ-2014-01034. Thank you for this opportunity to
comment on the proposed project to provide temporary docking
facilities for an annual boat show.
Project Summary:
The project would involve the installation of 546 dock piles,
497 mooring piles and 63 temporary helical anchor systems in
submerged aquatic land to accommodate 833 temporary vessel slips
and a temporary mooring field for 63 vessels.
Project Area:
The project area is in the Biscayne Bay Aquatic Preserve and directly
adjacent to the Bill Sadowski Critical Wildlife Area. Within the
proposed project area 5 species of sea grass have been identified, as
well as sponges, and some coral. Miami Waterkeeper and Tropical
Audubon are concerned about the potential environmental impacts of
these projects and request more information. Because of the
ecological sensitivity of this area, there are several overlapping layers
of environmental legal frameworks that must be considered, on both
the state and federal levels. For example, the Corps must ensure that
this project is consistent with the National Environmental Policy Act,
Clean Water Act, Endangered Species Act, Magnuson -Stevens
Fisheries Conservation and Management Act and National Historic
Preservation Act. This area is also part of the Biscayne Bay Aquatic
Preserve and adjacent to the Bill Sadowski Critical Wildlife Area.
We feel that some potential environmental impacts have not
been fully addressed in this permit notice. Our request for further
information, as well as a public hearing, is supported by the following
comments and concerns.
Submitted into the public
record for item(s) f'Z -3
on5.• 14- ?mil S . City Clerk
The Everglades Law Center, Inc. is a tax- exempt Florida not -for -profit corporation pursuant to Section 501(c)(3) of the Internal Revenue Code.
I. Legal Framework
A. The National Environmental Policy Act (NEPA)
The National Environmental Policy Act (NEPA) is our "basic national
charter for protection of the environment." 4o C.F.R. § i5oo.i(a). NEPA's
essential purpose is "to help public officials make decisions that are based on
understanding of environmental consequences, and take actions that protect,
restore, and enhance the environment." 40 C.F.R. § i5oo.i(c).
To accomplish its purpose, NEPA contains certain "action forcing"
provisions that compel federal agencies to consider the environmental effects of
their actions. 40 C.F.R. § 1500.19(a). Specifically, NEPA requires federal agencies
to prepare an environmental impact statement (EIS) for all "major Federal
actions significantly affecting the quality of the human environment." 42 U.S.C. §
4332(2)(C).
The EIS must describe (1) the "environmental impact of the proposed
action," (2) any "adverse environmental effects which cannot be avoided should
the proposal be implemented," (3) any "alternatives to the proposed action," and
(4) any "irreversible or irretrievable commitment of resources which would be
involved in the proposed action should it be implemented." Id.
This analysis must also include a thorough discussion of the indirect and
cumulative impacts resulting from the proposed action. See generally, Blue
Mountains Biodiversity Project, 161F.3d i208, 1214 (9th Cir. 1998) (discussing
importance of cumulative impact analysis in environmental assessments).
An agency may first prepare a detailed environmental assessment (EA) to
determine whether a project poses significant environmental impacts. 40 C.F.R. §
1508.9. If the agency concludes in an EA that a project may have significant
impacts on the environment, then an EIS must be prepared. If an EA concludes
that there are no significant impacts to the environment, the federal agency must
provide a detailed statement of reasons why the project's impacts are
insignificant and issue a "finding of no significant impact" (FONSI). Id. § 1508.13.
When an EA is performed on a project, the Corps must take a "hard look" and
"must make a convincing case" for a Finding of No Significant Impact and
decision not to perform an EIS. Hill v. Boy, 144 F.3d at 1450 (nth Cir.1990).
Federal agencies must prepare an EA or EIS prior to initiating any major
federal action so that the environmental impacts can be considered and disclosed
to the public during the decision- making process. 4o C.F.R. §§ 1501.2,1502.5.
An EA has not yet been prepared on this project. The Corps indicated that a
preliminary review indicated an EIS will not be required. We believe a robust EA
will be necessary to fully evaluate all the potential impacts from the proposed
action.
2
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B. The Clean Water Act
Congress enacted the Clean Water Act (CWA) in 1972 "to restore and
maintain the chemical, physical, and biological integrity of the Nation's
waters." 33 U.S.C. § 1251(a). The Act also states that "it is the policy of Congress
to recognize, preserve, and protect the primary responsibilities and rights of
States to prevent, reduce, and eliminate pollution, to plan the development and
use (including restoration, preservation, and enhancement) of land and water
resources, and to consult with the Administrator in the exercise of his authority
under this chapter." Id. § 1251(b).
To this end, the Act prohibits "the discharge of any pollutant by any
person." 33 U.S.C. 1311(a). "The discharge of a pollutant" is defined broadly to
include "any addition of any pollutant to navigable waters from any point
source," § 1362(12), and "pollutant" is defined broadly to include not only
traditional contaminants but also solids such as "dredged spoil, rock, ... sand,
[and] cellar dirt," § 1362(6). "Navigable waters" are defined as "the waters of the
United States, including the territorial seas." § 1362(7). "Placement of pilings in
waters of the United States constitutes a discharge of fill material and requires a
Section 404 permit when such placement has or would have the effect of a
discharge of fill material." 33 C.F.R. 323•3(c)(1)•
The Act provides certain exceptions to its prohibition of "the discharge of
any pollutant by any person." 33 U.S.C. § 1311(a). Section 1342(a) ("Section 404")
authorizes the Administrator of the EPA to "issue a permit for the discharge of
any pollutant, ... notwithstanding section 1311(a) of this title." Section 404
authorizes the Secretary of the Army, acting through the Army Corps of
Engineers Corps to "issue permits ... for the discharge of dredged or fill material
into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a), (d).
A 404 permit must satisfy regulations promulgated both by the Army
Corps and by the Environmental Protection Agency ("EPA"). Friends of the Earth
v. Hintz, 800 F.2d 822, 831 (9th Cir. 1986). The regulations promulgated by the
EPA under section 404(b)(1) of the CWA, provide that adverse impacts to
wetlands must be avoided to the extent that practicable alternatives are available
which will result in less adverse impacts. 4o C.F.R. § 23o.1o(a) (emphasis added).
A "practicable" alternative is one that is "available and capable of being done after
taking into consideration cost, existing technology, and logistics in light of overall
project purposes." 4o C.F.R. § 23o.1o(a)(2). The 4o4(b)(1) Guidelines establish a
presumption that all practicable alternatives that do not involve a discharge into
wetlands have less adverse impact on the environment "unless clearly
demonstrated otherwise." Id.; 4o C.F.R. §§ 23o.2(q-1), 230.41.
To determine whether a practicable alternative exists, the Army Corps
undertakes a multi -step analysis. 4o C.F.R. § 230.5. The Army Corps must
"examine practicable alternatives to the proposed discharge, that is, not
3
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discharging into the waters of the U.S. or discharging into an alternative aquatic
site with potentially less damaging consequences." Id. at (c).
Where no practicable alternative sites exist that would avoid filling or have
a less adverse impact, the Corps must consider whether "appropriate and
practicable steps have been taken which will minimize potential adverse impacts
of the discharge on the aquatic ecosystem." 4o C.F.R. § 230.1o(d) (emphasis
added); see also Fund for Animals, Inc. v. Rice, 85 F.3d 535, 544 (lath Cir. 1996)
(indicating that where "filling of wetlands cannot be avoided, the `appropriate
and practicable steps' must be taken to minimize the potential adverse impacts of
the discharge on wetlands").
The Corps has also promulgated regulations setting forth "General policies
for evaluating permit applications." 33 C.F.R. § 320.4. These policies require the
Corps to evaluate the "probable impacts, including cumulative impacts, of the
proposed activity and its intended use on the public interest weighing foreseeable
benefits against foreseeable detriments using all factors which may be
relevant. 33 C.F.R. §320.4(a)(1). Relevant factors include wetlands impacts, fish
and wildlife habitat values, and recreational, aesthetic, and economic values. Id.;
4o C.F.R. §23o.io(c). A permit will not be granted if contrary to public
interest. 33 C.F.R. § 320.4. We are interested to understand how this project
would serve the public interest considering these potential impacts.
C. The Endangered Species Act
The Endangered Species Act of 1973 "represent[s] the most comprehensive
legislation for the preservation of endangered species ever by any
nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, i8o (1978). The
purpose of the Endangered Species Act is to "provide a program for the
conservation of...endangered species and threatened species...and to provide a
means whereby the ecosystems upon which endangered species and threatened
species depend may be conserved." 16 U.S.C. § 1531 (b)(1). The overarching policy
of the Act is that "all Federal departments and agencies shall seek to conserve
endangered species and threatened species and shall unitize their authorities in
furtherance of the purposes" of the Act. 16 U.S.C. § 1531 (c)(1).
Section 7 of the ESA (16 U.S.C. § 1536) places on federal agencies both
substantive and procedural obligations with respect to listed species. All Federal
agencies are under an affirmative duty to insure that any action authorized,
funded or carried out by such agency is not likely to "jeopardize the continued
existence of any endangered or threatened species." 16 U.S.C. § 1536(a)(2).
To accomplish this, the Act requires the agency to consult with the United
States Fish and Wildlife Service (FWS) whenever a federal action "may affect" an
endangered or threatened species. 5o C.F.R. § 402.14(h)(3). An agency may first
initiate "informal consultation" to determine whether formal consultation is
warranted. 5o C.F.R. § 402.13(a). If the agency determines, with concurrence by
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FWS, that the action "is not likely to adversely affect listed species," the process is
terminated. 5o C.F.R. § 402.13. If, however, FWS does not agree with the
agency's finding or if informal consultation leads to the conclusion that the action
"may affect listed species," formal consultation is required. 5o C.F.R. § 402.14(a).
Formal consultation culminates with the issuance of a Biological Opinion
(BiOp) that determines whether the action "is likely to jeopardize the continued
existence of a listed species," and if so, what "reasonable and prudent
alternatives" the agency must take to avoid a violation of Section 7(a)(2) of the
Act. 16 U.S.C. § 1536 (b)(3)(A).
Although the Corps has determined that an EIS may not be required, we
believe that the sensitive nature of this area merits consultation with expert
agencies prior to the approval of a permit.
D. The Magnuson Stevens Act
The 1996 Sustainable Fisheries Act amended the Magnuson Stevens Act
(MSA) to provide greater protection for our nation's fisheries. 16 U.S.C. §§
1855 et seq. Under the MSA, the Secretary of Commerce must assist eight
regional fishery management councils in the "description and identification of
essential fish habitat in fishery management plans (including adverse impacts on
such habitat) and in the consideration of actions to ensure conservation and
enhancement of such habitat." 16 U.S.C. § 1855(b)(1)(A).
Essential Fish Habitat ("EFH") is defined as those "waters and substrate
necessary to fish for spawning, breeding, feeding, or growth to maturity." 16
U.S.C. § 1802(10). "Waters" include aquatic areas and their associated physical,
chemical, and biological properties that are used by fish and may include areas
historically used by fish where appropriate. "Substrate" includes sediment, hard
bottom, structures underlying the waters, and associated biological communities.
"Necessary" means the habitat is required to support a sustainable fishery and a
healthy ecosystem and "spawning, breeding, feeding, or growth to maturity"
covers a species' full life cycle. National Marine Fisheries Serv., Technical
Guidance to Implement the Essential Fish Habitat Requirements for the
Magnuson -Stevens Act (1999).
The MSA further mandates that any federal agency undertaking activities
that "may adversely affect" EFH must consult with the Secretary of Commerce
through the NMFS. 16 U.S.C. § 1855(b)(2). Actions triggering this requirement
are "any actions authorized, funded, or undertaken, or proposed to be authorized,
funded, or undertaken" by the federal agency. 16 U.S.C. § 1855(b)(2).
This process typically begins with the agency notifying NMFS of an action
that may adversely affect EFH.50 C.F.R. § 600.920(f)(1)(i). The agency then
provides information about the proposed activity, its potential effects, and
proposed mitigation in the form of an "EFH Assessment." 5o C.F.R. §§
5
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600.92o(g)(2)-(3). After NMFS receives information on the action, NMFS
recommends measures to conserve the EFH. 16 U.S.C.
§1855(b)(4)(A). Within thirty (30) days, the federal agency must respond to the
NMFS and the appropriate Councils with a description of measures that will be
taken to avoid, mitigate, or offset the impact of the activity on the EFH. 16 U.S.C.
§ i855(b)(4)(B)• If the agency chooses not to follow NMFS' recommendations, it
must explain its reasons in writing. Id. The final permit should include measures
that will be taken to avoid, mitigate and offset the impacts of the proposed project
on EFH.
II. Virginia Key
Virginia Key is a barrier island in Biscayne Bay. The island contains
maritime hammock, coastal wetlands and dune communities. The area directly
adjacent to the basin, includes the Bill Sadowski Critical Wildlife Area. The area
designated as area 7 in the map, attached hereto as Ex. 1 is the least disturbed
area of the island. The Bill Sadowski Critical Wildlife Area covers boo acres,
including submerged land, two spoil islands, mudflats and tidal -swamp forest.
This is one of less than 20 critical wildlife dnoticeesignated areas in the entire
State of Florida set aside to "[p]rotect important wildlife concentrations from
human disturbance during critical periods of their life cycles, such as nesting or
migration." See http://myfwc.com/conservation/terrestrial/cwa/.
The marine basin, directly adjacent to the Critical Wildlife Area contains
seagrass and algal communities. The seagrass that has been identified in the
basin itself, include, Thalassia testudinum, Syringodium filiforme, Halodule
wrightii, Halodule decipiens and Halodule englernannii. Moderate to dense
seagrass coverage is identified in the near shore areas of the basin, with sparser
seagrass towards the center of the basin. There are several listed species in the
area, including West Indian Manatee, smalltooth sawfish, loggerhead sea turtles,
leatherback sea turtles, green sea turtles, hawksbill sea turtles, and Kemps ridley
sea turtles.
Virginia Key has recreational park areas, beach dune communities, public
beaches and mangrove habitat. The Built areas of the island include a wastewater
treatment facility, a closed dump, the Rosenstiel School of Marine and
Atmospheric Science, a NOAA facility, a marina and restaurants and Mast
Academy High School.
III. Analysis
A. Alternatives should be considered and impacts minimized.
Both NEPA and the CWA require the Corps to analyze alternatives to the
proposed project. The regulations promulgated by the EPA under section 404
(b)(1) of the CWA, provide that adverse impacts to the aquatic ecosystem must be
avoided to the extent that practicable alternatives are available which will result
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in less adverse impacts. 4o C.F.R. § 230.1o(a). A "practicable" alternative is one
that is "available and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project purposes." 4o C.F.R. §
230.1o(a)(2). The 404 (b)(1) Guidelines establish a presumption that all
practicable alternatives that do not involve a discharge into the aquatic
environment have less adverse impact on the environment "unless clearly
demonstrated otherwise." Id.; 4o C.F.R. §§ 230.2(q-1), 230.41.
Where no practicable alternative sites exist that would avoid filling or have
a less adverse impact, the Corps must consider whether "appropriate and
practicable steps have been taken which will minimize potential adverse impacts
of the discharge on the aquatic ecosystem." 4o C.F.R. § 230.1o(d); see also Fund
for Animals, Inc. v. Rice, 85 F.3d 535, 544 (nth Cir. 1996). The Corps identified
multiple potential impacts from this project, including to seagrasses, West Indian
Manatee and Essential Fish Habitat. We are not aware that alternative sites have
been considered. This alternative site analysis must be conducted, but does not
appear to have been included in this initial analysis.
The Corps identified that this project may affect the West Indian Manatee.
This evaluation must therefore considered increased manatee populations in
Miami -Dade County during the winter, when the Boat Show is scheduled to take
place, but this does not appear to have been included in the initial analysis.
We would also like see an analysis regarding the proposed action and
potential impacts to turtle nesting season over the 90 day period that boat show
activity would occur. Turtle nesting season begins March ist, and based on the
schedule provided, it is likely that activities from the boat show, including
removal of the floating docks may be occurring at that time. This analysis does
not appear to have been yet considered.
If a permit is issued, certain conditions should be included to minimize
impacts to the sensitive surrounding ecosystem and threatened and endangered
species in the surrounding area. During boat shows, visitors are provided
opportunities to go out in the water on the boats or "test" vessels. This is another
potential area for possible impacts. Conditions should therefore be included in
the permit strictly limiting the location and impacts of any "testing" activities and
passage of vessels to and from the Boat Show to minimize the impacts to the
surrounding aquatic ecosystem and marine life including manatees, sea turtles
and the Bill Sadowski Critical Wildlife Area. Analysis of these impacts and
provisions to prevent and mitigate for these impacts should be included to
require adequate enforcement and implementation of any such conditions.
The notice states that the installation and removal of the floating docks
would take place over up to 90 days. Over a 90 day period, there may be
significant impacts to seagrass because of shading. We recommend that the
Corps to evaluate whether this time period could be additionally restricted to
minimize the impact to seagrass. Previous installations at the Miami Boat Show
Submitted into the public b3
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on
in Miami Beach were installed and then removed within one month, thereby
reducing shading impacts significantly. It is not clear why these installations are
proposed for 3-times the length of time to accommodate the same event.
Furthermore, additional measures should be incorporated into the permit to
reduce shading impacts to the seagrass, such as installation of slotted docks that
will allow light to get through.
Previous installations of floating docks at the Miami Boat Show in Miami
Beach also included polystyrene docks that were made of uncover and
unencapsulated polystyrene. The product broke apart in some locations and
damaged the surrounding waters and shoreline. Small pieces of
plastic/polystyrene of this size cannot be cleaned up due to its small size. The
polystyrene will be part of the marine environment for hundreds or thousands of
years. We urge the Corps to require floating docks that will not result in
polystyrene contamination of the aquatic ecosystem.
Seagrass habitat is dynamic and continually fluctuating between areas that
are continuously vegetated and areas that are only intermittently vegetated.
Because of the changeable nature of seagrass habitat, multiple surveys are
necessary to adequately understand the true nature of the seagrass bed.
According to the permit notice, only one survey by DERM was, which may have
severely underestimated the true area of the seagrass bed. To appropriately
minimize impacts to the seagrass bed, additional more detailed surveys should be
conducted. We would also like to be certain that the entire area within the
proposed project footprint, including the area where the mooring field is
proposed, have been adequately surveyed for seagrass and other benthic
resources.
The exact location of pilings and helical anchor systems in relation or
other benthic resources should be demonstrated. Having a diver present when
pilings are placed is not sufficient to avoid damage to marine life. For example, if
a piling support is place in a location where seagrass is present, will the diver
recommend moving the piling? From the notice, it appears that piling locations
are set, and therefore having a diver present will not protect these resources.
Significantly more detail should be required, as well as an exploration of piling
types that potentially do not disturb the hardbottom.
On land construction connected to this project may result in impacts to
surrounding water resulting from runoff from vehicles and construction
activities. Those potential impacts must be accounted for and impacts
minimized.
B. The Corps Must Consider Impacts to Historical and Archaeological
Significant Properties
In addition to the unique wildlife habitat and ecosystems on Virginia Key
the Marine Stadium and historic and current use of the basin by rowing clubs for
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racing and practice present historical aspects of the project that must be
considered. The Corps is required to consider the impacts to any "district, site,
building, structure, or object that is included or eligible for inclusion in the
National Register [of Historic Places]" under the National Historic Preservation
Act. (NHPA). 16 U.S.C. § 47of.
Under Section io6, the Corps must consult with the state historic
preservation officer, make a reasonable and good faith effort to identify historic
properties, determine their eligibility for listing in the National Register of
Historic Places, and assess the effects of a project on such properties.
NEPA also requires the Corps to "use all practicable means, consistent with other
essential considerations of national policy, to improve and coordinate Federal
plans, functions, programs, and resources to the end that the Nation may .. .
preserve important historic, cultural, and natural aspects of our national
heritage." 42 U.S.C. § 4331(b)(4).
Accordingly, the Corps has a duty under NEPA and the NHPA, to assess
any impacts to the historical significance of the Marine Stadium and the historic
and present use of the site by rowing clubs.
C. Mitigation damage for damage to the aquatic environment must be
required in the permit
The applicant has not provided adequate compensatory mitigation for
piling locations or shading impacts. The applicant should provide funding to
cover adequate and sufficient mitigation needed for any damage to resources that
may occur.
The notice refers to environmental education in relation to mitigation, but
it is unclear how this is related to mitigation. Environmental education that
would reduce litter and impacts the surrounding resources from boating uses
may be appropriate to minimize impacts, but does not constitute mitigation. If
environmental education is part of the application, the applicant should better
demonstrate how that education will occur and explain how and where it will take
place at the show.
D. The Corps Must Consult with the Fish and Wildlife Service and the
National Marine Fisheries Service Regarding Impacts to the Multiple
Endangered and Threatened Species Potentially Impacted by the
Proposed Action
The public notice acknowledges the presence and potential impacts to
numerous threatened and endangered species, including West Indian Manatee,
Smalltooth Sawfish, loggerhead sea turtle, leatherback sea turtles, green sea
turtles, hawkbill sea turtles and Kemp's ridley sea turtles. We urge the Corps to
ensure that additional threatened and endangered species, particularly those
whose habitat includes the Bill Sadowski Critical Wildlife Habitat, including bird
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rookeries, are not impacted by the proposed action. Once an agency is aware that
an endangered species "may be present in the area of its proposed action, the
ESA requires it to prepare a biological assessment." Thomas v. Peterson, 753
F.2d 754, 763 (9th Cir. 1985). The Corps must initiate consultation in accordance
with Section 7 of the ESA to ensure that this project will not jeopardize the
continued existence of this species or any other endangered or threatened
species. Due to the size, scope and potential impacts of this project, formal
consultation may be required.
E. The Corps Must Work Closely with the National Marine Fisheries
Service to Ensure No Significant Impacts to Essential Fish Habitat
(EFH)
The Corps identified that the project "would have a substantial adverse
impact on EFH or federally managed fisheries in the Biscayne Bay Aquatic
Preserve. The Corps must provide detailed information about the proposed
activity, its potential effects, and proposed mitigation in the form of an "EFH
Assessment." 5o C.F.R. §§ 600.92o(g)(2)-(3). After NMFS receives information
on this action, NMFS may recommend measures to conserve the EFH. 16 U.S.C. §
1855(b)(4)(A). Within thirty (30) days, the Corps must respond to the NMFS and
the appropriate Councils with a description of measures that will be taken to
avoid, mitigate, or offset the impact of the activity on the EFH. 16 U.S.C. §
1855(b)(4)(B).
Request for a Public Hearing
In addition to submitting these public comments we request a public
hearing on this permit application. The sensitive environment in and
surrounding the project area make this an issue that deserves further public
discourse, evaluation and a public hearing.
Conclusion
If the Corps determines it is appropriate to issue a permit in this situation
we urge the Corps to include conditions in the permit as suggested in this letter
that will minimize the impacts to the aquatic ecosystem and adequately mitigate
for any damage that may occur.
Thank you again for the opportunity to comment on this project.
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Best regards,
Julie Dick
Cc via email:
Roy Crabtree, NMFS
David Bernhart, NMFS
Ginny Fay, NMFS
Lee Hefty, DERM
Lisa Spadafina, DERM
Cynthia Dohner, FWS
Mayor Tomas Regalado, City of Miami
Mayor Carlos Gimenez, Miami -Dade County
Mayor Mayra Pena Lindsay, Village of Key Biscayne
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Submitted into the public
record for item(s) 1'1 •.3
on 5. i 1-f • 2-0tc . City Clerk
Ex. 1.
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Submitted into the publics,
record for item(s)
on 5- lg. O► s . City Clerk
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