Army Corps used bad data to approve Florida dredging project, suit says

August 31, 2016

Peter Gash snorkels with Oliver Lanyon and Lewis Marshall during an inspection of the reef's condition in an area called the 'Coral Gardens' located at Lady Elliot Island located north-east from the town of Bundaberg in QueenslandEnvironmental groups allege the U.S. Army Corps of Engineers has approved a dredging project for Port Everglades in Fort Lauderdale, Florida, using the same wrong assumptions it used to authorize a similar project that damaged threatened coral species at the Port of Miami.

In a complaint filed in the U.S. District Court for the Southern District of Florida, the plaintiffs claim the Army Corps ignored the results of the Port of Miami dredging project, which the groups say was “extremely harmful” to rare coral and their habitat.

The suit says the Army Corps is required to reinitiate consultation if new information reveals an action may affect protected species or critical habitat in a manner not considered earlier. This did not happen, the plaintiffs allege.

The Army Corps and the National Marine Fisheries Service, also named as a defendant, violated the Endangered Species Act, 16 U.S.C.A. § 1531, and the Corps violated the National Environmental Policy Act, 42 U.S.C.A. § 4321, according to the suit.

The plaintiffs include Miami Waterkeeper, the Center for Biological Diversity, Florida Wildlife Federation Inc. and The Diving Equipment & Marketing Association.

Port of Miami impacts

The complaint says the NMFS originally issued a biological opinion in connection with the Port of Miami project in 2003. This biological opinion focused on that project’s potential impacts on Johnson’s seagrass, a species of coral listed as threatened under the ESA.

Staghorn and elkhorn corals were listed as threatened under the ESA in 2006, the complaint says.

According to the complaint, the Army Corps identified that these two threatened species might be found in the Port of Miami action area.

The Army Corps reinitiated consultation with the NMFS in 2011 to consider impacts to the newly listed coral species, the complaint says.

This prompted the NMFS to issue a new biological opinion for the Port of Miami project, according to the complaint. The new opinion determined the project was likely to adversely affect staghorn corals and staghorn and elkhorn critical habitat.

The NMFS predicted the corals would suffer only temporary and insignificant impacts due to sedimentation, according to the plaintiffs.

However, a contractor hired by the Army Corps found in October 2013, one month before the start of dredging, that 243 staghorn colonies were present in the area rather than the 31 identified in a 2010 survey, the complaint says.

According to the complaint, the Army Corps started the construction phase of the Port of Miami dredging project in Nov. 2013.

Contractors reported after construction began that monitored coral communities showed signs of stress, according to the plaintiffs.

The Army Corps also reported several significant coral sediment stress events to the Florida Department of Environmental Protection under the conditions of its permit, the complaint says.

Surveys conducted in 2014 revealed staghorn corals buried in sediment and dying, prompting the NMFS to issue an emergency recommendation to immediately relocate some of the coral colonies, the plaintiffs allege.

In addition, the FDEP issued the Corps a warning letter in August 2014 identifying significant impacts to corals that violated the Corps’ dredging permit, according to the complaint.

When the Army Corps ignored the NMFS recommendation and the FDEP warning, Miami Waterkeeper and others sued to force the agency to submit a supplemental biological assessment after completing construction, the plaintiffs say.

In that assessment the Army Corps acknowledged that up to 290 colonies of staghorn coral located near the dredging channel suffered sediment accumulation, the complaint says.

The Army Corps also reported that more than 10,000 staghorn coral colonies had been mapped between Port Everglades and Palm Beach County, the plaintiffs say.

Port Everglades project

According to the complaint, the Army Corps plans to deepen and widen the outer entrance channel of Port Everglades, 30 miles to the north of the Port of Miami.

To do so requires the removal of 5.47 million cubic yards of material, the complaint says.

The plaintiffs say the Army Corps completed an ESA consultation with the NMFS in 2014 and an environmental impact statement for the project in 2015.

The NMFS released a biological opinion for the Port Everglades project in March 2014 before it was aware of the full extent and severity of the impacts found in Miami, the complaint says.

According to the complaint, the Port Everglades biological opinion concluded the project is not likely to jeopardize staghorn coral and six of seven other coral species proposed for listing under the ESA.

The biological opinion also concluded the project is not likely to destroy or modify designated critical habitat for elkhorn and staghorn coral, the complaint says.

In this opinion the NMFS allegedly used the same approach as it did in Miami, concluding again that the effects on coral from sedimentation would be temporary and insignificant.

And the NMFS did not have reliable estimates of the number of colonies of coral species proposed for listing under the ESA that might be found near the site of Port Everglades dredging activities, according to the complaint.

The plaintiffs say the Army Corps’ environmental impact statement for the Port Everglades project noted there was a “paucity” of data concerning sedimentation effects on coral found in Florida.

However, the Army Corps relied on results from four older dredging projects that took place between 1980 and 2007 to inform its analysis, the complaint says.

According to the plaintiffs, the Army Corps has yet to supplement its EIS to “account for lessons learned in Miami.”

The Army Corps also has not reinitiated formal consultation with the NMFS under the ESA despite requests from the plaintiffs, the complaint says.

The pre-construction, engineering and design phase of the Port Everglades project has started despite the outdated biological opinion, according to the plaintiffs.

The complaint says this phase of the project is scheduled to end in 2017.

The plaintiffs have asked the court to vacate the approval of the Port Everglades project and its biological opinion and order the Army Corps to reinitiate ESA consultation.

Miami Waterkeeper et al. v. U.S. Army Corps of Engineers et al., No. 16-cv-61975, complaint filed, 2016 WL 4402059 (S.D. Fla. Aug. 17, 2016).