Jane West, Esq Meeks August 11,2015 Jo-Ellen Darcy Sent via U.S. Mail Assistant Secretary of the Army and electronic mail 108 Army Pentagon Washington DC 20310-0108 Re: Jacksonville Harbor Navigation Study, Duval County, Florida 60 Day Notice of Intent to Sue over Record of Decision approving of the Final Integrated General Reevaluation Report II and Supplemental Environmental Impact Statement Dear Assistant Secretary Darey: On behalf of St. Johns Riverkeeper, undersigned counsel submits this letter pursuant to the 60-day notice requirement of the citizen suit provision of the Endangered Species Act (“ESA”), 16 U.S.C. Notice of Intent to Sue § 1540(g). You are hereby notified of Plaintiff's intent to bring a civil action in federal district court for violations of the National Environmental Policy Act (“NEPA”), the Endangered Species Act (“ESA”), and the federal Clean Water Act (*CWA”), among other applicable state and federal laws due to the Record of Decision approving of the Final Integrated General Reevaluation Report II and Supplemental Environmental Impact Statement for the Jacksonville Harbor Navigation Study, in Duval County, Florida. Furthermore, while ‘we recognize that some provisions of the civil action under NEPA do not require a 60-day notice with respect to this project, we are nonetheless providing this as a matter of professional courtesy. EXECUTIVE SUMMARY OF CASE. On April 8, 2015 the U.S. Army Corps of Engineers (“ACOE”) issued a Record of Decision (“ROD”) approving of the Final Integrated General Reevaluation Report II (“GRR2”) and Supplemental Environmental Impact Statement (“SEIS”) dated January 2014 for the Jacksonville Harbor Navigation Study. By virtue of the decision issued in the ROD, the ACOE is moving forward with the deepening of the St. Johns River from 40 feet to 47 feet from the mouth of the river on the Atlantic Ocean to 13 miles inland to accommodate deep draft vessels commonly referred to as Post-Panamax cargo ships. St. Johns Riverkeeper is challenging the conclusions reached by the ACOE for various reasons, including a failure to provide appropriate in-kind mitigation for the damage that will result from the dredging to our natural resources, insufficient assessment of the environmental impacts, violations of the Endangered Species Act and Clean Water Act, and a flawed economic assessment. Until such time as the issues raised herein and in the public comments to the SEIS are appropriately addressed by the ACOE, St. Johns Riverkeeper will pursue all available options to protect the St. Johns River from this massive dredging project, including federal litigation. 201 OWENS AVE., SUITE A + SAINT AUGUSTINE, FL 32080 1 Orrice: 904-471-0505 © Wen: sew janewestlaw.comHISTORY The initial Environmental Impact Statement (“EIS”) was prepared for the Jacksonville Harbor Deepening Project (“Project”) in 1998. The Project was then authorized through the Water Resources Development Act (“WRDA”) in 1999, resulting in the deepening of the St. Johns River channel from 38 feet to 40 feet from the mouth to River Mile 14.7. A General Reevaluation Report (“GRR”) was then completed by the ACOE in 2002, recommending that the deepening to 40 feet continue to River Mile 20. At the time, sufficient benefits did not exist to authorize deepening beyond 40 feet. The ACOE now asserts that conditions have since changed due to the expansion of the Panama Canal to accommodate larger Post-Panamax cargo ships, requiring a deeper Jacksonville harbor. The entire St. Johns River was officially designated an American Heritage River on July 30, 1998 in recognition of its ecological, historic, economic and cultural significance.' This designation is significant because it requires the signatory partners, including federal agencies such as the ACOE, to preserve and enhance the water quality and ecological resources of the St. Johns River. In addition to the deepening of the River, the following amenities will be constructed as part of the project to accommodate larger cargo vessels in JAXPORT: (1) the construction of a turning basin about 2,700 feet long and 1,500 feet wide near river mile 10 and a slightly shorter turning basin at river mile 13; (2) the widening of northern part of the St. Johns River near river mile 3-5 and additional widening to the south near river mile 5-6 and widening both sides of the river up to 300 feet near river mile 7-8; and (3) the removal of approximately 18 million cubic yards of river bottom that will primarily be dumped in a designated offshore disposal site. REGULATORY REQUIREMENTS Although the ACOE does not process and issue permits for its own activities, it does “authorize” its own discharges, applying all applicable substantive requirements, including the Section 404(b)(1) Guidelines. 33 CER § 336.1; 40 C.F.R. § 230.2(a)(2). In short, the ACOE must comply with the same substantive legal requirements that are required of Section 404 permittees. Given the scale of this Project and the environmental impacts that would result, the ACOE prepared and released a Final Integrated General Reevaluation Report II (“GRR2”) together with a Supplemental Environmental Impact Statement (“SEIS”) to update the original GRR and EIS. Pursuant to NEPA, the SEIS must explore a reasonable range of potential alternatives to meet the primary objective of the Project. In fact, the primary purpose of the SEIS is to carefully explore a reasonable range of locational and functional alternatives that meet some or all of the primary project purposes, including a “no- action” alternative, and compare their overall relative direct and indirect environmental impacts. 40 C.F.R. §§ 1502.14(d), 1508.25(b). An evaluation of the Project’s harm to the environment, appropriate in-kind mitigation, and a comprehensive economic analysis to determine the viability of such a vast expenditure of public funds must be included in the study, 40 C.F.R. §§ 1502.14(d), 1508.8, yet, as set forth below, the study falls short, and as such, the ROD should not have been issued. iam J. Clinton, Proclamation, “Designation of American Heritage Rivers, 1998, Proclamation 7112.” 112 Stat. 3782-3783 uly 30, 1998): ht: //www.gpo.gov /fdsys/pkg/STATUTE-112/pdt/STATUTE-112-Pg3782 pdf.‘An evaluation under Section 404(b)(1) Guidelines of the Clean Water Act is required for the proposed discharges of dredged or fill material and their effluent into waters of the United States. Corps projects, such as this, can only be authorized if they represent the least damaging “practicable alternative” that will meet the basic purpose and need for the project. 40 C.F.R. § 230.10(a). The Section 404(b)(1) Guidelines further prohibit discharges of dredged or fill material if it “[cJauses or contributes . . . to violations of any applicable State water quality standard,” Id. § 230.10(b)(1). Additionally, the Corps’ criteria for evaluating a permit application under Section 404 of the CWA are set forth at 33 C.F.R. § 320.4. Pursuant to these regulations, the “[dlecision whether to issue a permit will be based on an evaluation of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.” See 33 C.F.R. § 320.4(a) (listing relevant factors to be considered). Careful study and consultation with National Marine Fisheries Service (NMFS) and Fish and Wildlife Service (FWS) is required pursuant to Endangered Species Act (ESA) in connection with the Project given the presence of the endangered Shortnose Sturgeon, North Atlantic right whales, sea turtles, manatees, wood storks, and other imperiled wildlife. Section 7 of the ESA requires that each federal agency “shall insure that any action authorized, funded or cartied out by such agency . . . is not likely to jeopardize the continued existence of any” listed species. 16 U.S.C. § 1536(a)(2). Further coordination with FWS is required by the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661 to 667e, which provides the basic authority for the FWS’s involvement in evaluating impacts to fish and wildlife from proposed water resource development projects. NEPA Although NEPA dictates procedures, not outcomes, it is nevertheless an “action-forcing” statute that aims to improve the quality of agency decisions and protect the environment. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). The NEPA process is designed to “bring pressure to bear on agencies” and is “almost certain to affect the agency’s substantive decision.” Jd. at 349. Under NEPA, an agency must “make its decision to proceed with the action after taking a ‘hard look at environmental consequences.” Sabine River Authority v. Department of Interior, 951 F.2d 669, 676 (5th Cir. 1992). NEPA’s environmental impact statement requirement has a dual purpose in achieving these goals. First, it requires federal agencies to thoroughly and objectively investigate, evaluate, and disclose environmental consequences associated with any major federal action. Requiring an EIS ensures that agencies “will have available, and will carefully consider, detailed information concerning significant environmental impacts,” Robertson, 490 U.S. at 349, and thereby “fosters informed decision-making.” Oregon Natural Desert Ass'n v. BLM, 625 F.3d 1092, 1122 (9th Cir. 2010). Second, it serves as an “environmental full disclosure law so that the public can weigh a project’s benefits against its environmental costs.” Nat'l Audubon Society v. Hoffman, 132 F.3d 7, 12 (2d Cir. 1997). In an attempt to fulfill these purposes, the Corps has prepared a SEIS for the proposed Jacksonville Harbor Deepening Project. To satisfy NEPA, the SEIS must describe the purpose and need for the proposed action and must consider all reasonably foreseeable, significant adverse impacts of the proposed action. 40 CER. § 1502.13, 16. The SEIS must consider the cumulative and indirect impacts of the proposed action, including reasonably foreseeable expansions in the scope of the proposed action. Id. § 1502.16. The SEIS must also consider all reasonable alternatives to the proposed action. 42 U.S.C. § 4332(C)(iii), (E); 40 CFR. § 1502.1. The ACOE must also identify any reasonable mitigation options to help reduce adverse impacts to the environment.1. Failure to Provide for In-Kind Mitigation ‘The Corps must consider alternatives to the proposed action, as well as mitigation steps to be taken to minimize adverse impacts. Mitigation for the deepening of the St. Johns River is necessary for a multitude of reasons, including the inerease in salinity within the Lower St. Johns River basin (“LSJR”) that will result from the proposed dredging project. ‘The LSJR is an estuarine system in which salt water from the Atlantic mixes with the fresh water from the upper St. Johns River and its tributaries. The LSJR ecosystems are sensitive to salinity levels and those levels will be adversely altered by the proposed dredging. ‘The impacts will range from harming wetlands, damaging submerged grasses, stressing trees, altering Dissolved Oxygen Dynamics and threatening habitat for endangered species and critical fisheries. Furthermore, dredging will result in increased erosion, sedimentation, turbidity, and siltation according to the Fish and Wildlife Service. ‘The EPA specifically described the salinity impacts in one of its comment letters: .-- the area where most wetlands functional losses could be expected is along the St. Johns River...Wetlands functional changes are expected to consist primarily of accelerated wetland conversion from tidal swamp to tidal marsh.// (and) forested wetlands habitat may be reduced for freshwater species. A substantial shift in salinities is expected further upstream in the St. Johns River, potentially converting approximately four miles of transitional zone into salt marsh. Considerable areas of freshwater swamp +. could potentially experience higher salinity frequencies, causing changes to the soil substrate, vegetative composition, and habitat use. EPA also notes there are potentially unresolved issues regarding threatened and endangered species. (EPA Comments on SEIS, July 31, 2013, from Heinz Mueller, Chief, NEPA Program Office, at page 2.) Unfortunately, the mitigation plan approved by the ACOE is inadequate, failing to offset these ecological impacts. The Corps suggests only purchasing 638 acres of freshwater wetlands, uplands, river shoreline, and salt marsh wetlands. However, preserving existing uplands and wetlands will not adequately offset the increase in salinity and subsequent ecological harm that will occur as a result of the dredging. ‘The National Marine Fisheries Service agrees as stated in their December 20, 2013 Letter: Preserving existing healthy SAV and tidal freshwater wetlands does not sufficiently compensate the public for the ecosystem services that will be lost due to deepening the federal navigation channel, (NMFS Comments on the SEIS, December 20, 2013, from Virginia M. Fay, Assistant Regional Administrator, Habitat Conservation Division, page 3) Other mitigation alternatives include strategies to improve the water quality in the river by reducing unregulated discharges, such as those from failing septic systems, or restoring the natural flow of water from the Ocklawaha River to the St. Johns. The latter mitigation effort would restore the natural flow of millions of gallons of freshwater per day to the St. Johns River, restore thousands of acres of forested wetlands, providewater quality improvements, dilute increased salinities and enhance federally managed fisheries and endangered species habitat. The restoration of the Ocklawaha River has been supported for years by various state and federal agencies (EPA, USDA, NMFS, FDEP). Unfortunately, this mitigation option was apparently rejected by the Corps. Additional mitigation options include planting of saltwater tolerant grasses along the new transition areas in the river, implementing green infrastructure, such as bioswales, restoring tributaries in the Lower St. Johns River or retrofitting storm drains near the river with filters to reduce the amount of polluted run-off into the river. Instead of selecting these types of pro-active mitigation that would improve water quality and restore the natural hydrology of the river, the Corps chose to purchase existing conservation lands and focus primarily on monitoring. This mitigation strategy does nothing to minimize the adverse effects of dredging or compensate the public for the loss of ecosystem services. Furthermore, monitoring is a standard permit condition and not a substitute for true compensatory mitigation. 2, Fast-Tracking has Detrimentally Impacted the Permitting Process NEPA’s overall intent is that reasonable decisions should be made by federal agencies in environmental permitting. This includes issues of project scope, timing and the balancing of a project’s impacts, both beneficial and adverse. In addition, the agency is required to comprehensively and thoroughly review the project, following specific guidelines and a prescribed evaluation process. Unfortunately, two aspects of the current dredging permit have cast doubt over the entire permit approval process. First, there was the “fast tracking” of the permit application by Executive Order that significantly shortened the timeframe by fourteen months. This requirement that ACOE expedite the permit review made the process unreasonable from the outset. The Federal government shutdown of 2013 that resulted in furloughed ACOE employees only compounded the problem. ‘The second unusual aspect of the permit approval involves the proposed use of post-facto monitoring as a cure-all for the lack of alternatives and/or mitigation steps proposed by the Corps. Post-facto monitoring is not a mitigation alternative, doing nothing to minimize or offset the adverse impacts of dredging and providing no compensatory relief for the public. Further, this type of monitoring is a standard permit condition for most NEPA approvals. It seems that the Corps used the post-facto monitoring as a substitute for immediate and on- going mitigation. This is the antithesis of the careful, up-front review required by NEPA. Together with the short-cuts that were required by the fast-track process, these monitoring suggestions imply a “wait and see” approach as to adverse impacts. Such an approach is unacceptable and unreasonable under the NEPA process and guidelines. All alternatives and mitigation options should be included early in the permitting process, so they can be carefully considered by the agency and the public. To proceed with incomplete data, or to “rush” the review process to meet an arbitrary deadline is inherently suspect and unreasonable, Based upon the above examples, it appears that ACOE did not give the required “hard look” at the full range of mitigation options for increased salinity and other environmental impacts from the dredging. That in tum resulted in an arbitrary decision to approve, with assurances for some level of future “monitoring” to address any adverse impacts to the St. Johns River and its tributaries.3. Failure to Adequately Assess Environmental Risks The SEIS fails to adequately account for the impact associated with salinity increases that will occur upstream of the channel deepening and minimizes the ecological shift in species, populations and communities that will result. The SEIS also contains inconsistencies and questionable statements regarding the potential impacts, calling into question the accuracy of the models used to make the predictions. The ACOE-commissioned Independent Expert Peer Review (IEPR) underscores these concerns in their July 2013 Report: * Use of different salinity models for the main stem versus the tributary evaluations makes evaluating salinity effects very difficult, * The analysis and presentation of salinity results in the General Reevaluation Report II (GRR2) provide an incomplete understanding of the impacts of channel enlargement. ‘The IEPR questions why the model “was the most appropriate choice for the St. Johns River circulation and salinity modeling” but “not the most appropriate model choice for the extension of that study into the tributaries.“ The report goes on to say that ” changing models reduces confidence in the earlier decision to us EFDC (Environmental Fluid Dynamic Code] and, therefore, reduces confidence in its results.” AAs stated by the IEPR, the bottom line is that “using a different model for the tributary salinity and marsh modeling is ill-advised,” and “provides an incomplete understanding of the impacts of channel enlargements.” In addition to the concer regarding inconsistent models, the SEIS uses averages, subjective assumptions and high-risk models to downplay the impact of the deepening project. According to the IEPR: * “The evaluation of the project alternatives’ effects on natural communities as a result of the movement of higher salinity water upstream in the LSJR and tributaries relies on the use of hydrodynamic and ecological models. The hydrodynamic model reports (Taylor 2011, 2013b, 2013c) present error statistics for the EFDC and CE-QUAL-ICM models. Similar error statistics cannot, however, be calculated for the ecological models. This represents an uncertain risk associated with evaluation of the ecological model results.” (p. 256) + “Recorded conditions for streamflow, rainfall, land use, and other factors during a six-year period (1996 — 2001) provide input data for the hydrodynamic models. Future condition hydrodynamic model simulations further rely on assumptions about the rate of sea level rise, quantity of water withdrawal from the middle St. Johns River, patterns of land use, and other factors. Actual conditions will deviate from those used to drive the models. These deviations introduce additional uncertainty in the models’ ability to predict future conditions and impacts.” (p. 256) Finally, the IEPR called into question the model used to determine annual sedimentation rates: * "The adaptive hydraulics (ADH) sediment modeling results do not provide a reliable estimate of the annual sedimentation rates necessary to establish environmental effects and sediment management requirements."‘* "Because the period was not shown to be representative of typical conditions and the model [ADH] is not considered validated, the results are assumed to be unreliable indicators of future conditions." In short, the ACOE analysis is flawed and incomplete, significantly underestimating the potential threats to the health of the St. Johns River. ESA VIOLATIONS The ESA “represents[s] the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.” Tenn. Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Section 9 of the ESA prohibits any “person” from “taking” any member of an endangered or threatened species. 16 U.S.C. § 1538(a). Where federal action is involved that is likely to take or otherwise impact listed species, the action agency must engage in consultation with the Service. Id. § 1536. Specifically, the action agency must ensure that the action at issue, in this case the deep dredging and ongoing use of the deeper channel by mega cargo ships, “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” Id. § 1536(a)(2). All federal agencies must consult with the federal resource agency responsible for the species at issue, known as the expert agency, and once they determine that the proposed action “may affect listed species or critical habitat,” it must engage in formal consultation with the expert agency. 50 C.F.R. § 402.14(a). The “may affect” standard that triggers the consultation requirement is low. Colo. Env'l Coalition v. Office of Legacy Mgmt., 819 F. Supp. 2d 1193, 1221-22 (D. Colo. 2011). A “may affect” determination is required when any “possible effect, whether beneficial, benign, adverse, or of an undetermined character” occurs. Cir. for Biological Diversity v. BLM, 698 F. 3d 1101, 1101 (9th Cir. 2012). To comply with the substantive requirements of the ESA, the ACOE must “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in adverse modification of habitat of such species . . . determined . . . to be critical . ...” Fla. Key Deer v. Paulison, 522 F. 34 1133, 1138 (11th Cir. 2008). Agency “action” is broadly defined in the ESA’s implementing regulations to include “(a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifications to the land, water, or air.” 50 C.F.R. § 402.02. Formal consultation requires that the governmental agencies use “the best scientific and commercial data available.” 16 U.S.C. § 1536(a)(2). Although a governmental agency may request assistance from the U.S. Fish and Wildlife Service (“Service”) in determining whether an action will have “no effect” or “may affect” a listed species, both the governmental agency and the Service must take care not to conclude “no effect” based merely on the superficial assumption that a species is not currently present in the action area for a proposed project. First, given the difficulties inherent in studying rare and endangered species, an ESA-listed species may well be present, but the 2 The term “take” is defined broadly to include “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” Id. § 1532(19). EWS has further defined “harass” to include “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral pattems, including breeding, feeding, or sheltering. 50 CER. § 17.3. In addition, “harm” is defined to “include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral pattems, including breeding, feeding or sheltering, Id.agencies failed to detect it at the action area location or failed to properly assess the project impacts. Second, even if a species is in fact not present at the action area, this does not mean that the action agency or the Service can simply make a “no effect” determination. Rather, the prospect that a species’ habitat—especially the presence of habitat needed for recovery—is within an action area can be sufficient to trigger the full consultation requirements of Section 7. Southwest Ctr. for Biological Diversity v. United States Forest Serv, No, CV 97-666 TUC JMR, 2001 LEXIS 25027 (D. Ariz. Mar. 30, 2001). 1,West Indian (Florida) Manatee The SEIS states that the proposed action “may affect,” but is not likely to adversely affect the manatee, ‘The fact that the proposed action “may affect” the manatee triggers the requirement to consult with the expert agency, or in this case, the Florida Fish and Wildlife Conservation Commission (FWC). 50 C.F.R. § 402.14(a). The conditions in the SEIS require precautions during construction to limit any harm that could occur to manatees by construction personnel. However, the SEIS does not address the long-term effects of the proposed action or identify strategies to avoid impacting and jeopardizing manatee habitat. During construction, there will be adverse effects from blasting on manatees commonly seen transiting through the portion of the St. Johns River where construction will be taking place. Both the pressure and noise associated with blasting can injure marine mammals. Direct impacts on marine mammals due to blasting activities in the project area include alteration of behavior and autecology. For example, daily movements and seasonal migrations of manatees may be impeded or altered. These effects on manatees would not result in an incidental take, but it may amount to harassment under the Marine Mammals Protection Act (MMPA) and ESA. The SEIS analyzed data from the rock-contained blasts in the Miami Harbor in 2005. The pressure waves from the blasts affect the air cavities in the lungs and intestines of marine mammals, and are more likely to injure smaller animals like dolphins calves. Marine mammals like manatees are highly acoustic, and if the blasting causes significant changes in the behavior of manatees in the area, it could result in a take under the MMPA and ESA. 16 U.S.C. § 1532(19). The proposed action does nothing to further the conservation of the manatee, and actually causes unlawful harm to this species. 2,Shortnose and Atlantic Sturgeon ‘The SEIS states that the proposed action may affect, but is not likely to adversely affect the Shortnose or the Atlantic Sturgeon, The adults spawn in freshwater in the spring and migrate into estuarine and marine waters where they spend most of their lives. Sturgeon eggs are highly adhesive and usually are deposited on hard surfaces. Atlantic Sturgeon sightings have been reported from Hamilton Inlet, Labrador, south to the St. Johns River, Florida. 75 Fed. Reg. 61904, 61905 (Oct. 6, 2010), There is evidence that the Ocklawaha River serves as a nursery for some of the Atlantic Sturgeon young coming from other river systems to the north, Dredging poses a threat to their habitat, because the disturbance of benthic fauna, elimination of deep holes, alteration of rock substrate, increase in turbidity and sedimentation, disturbance from noise, and hydrodynamic alteration change the environmental conditions, and subsequently, the behavior patterns of the sturgeon. (National Marine Fisheries Service 2012). ‘The proposed project will result in the reduction of habitat for the continued existence of the Shortnose and Atlantic Sturgeon. Sturgeon are bottom-feeders, and the proposed deepening project will eliminate the benthic community in dredged areas. While there is currently no spawning population in the St. Johns River, the river is a nursery ground for young sturgeons. In the future, the St. Johns River could be a source forAtlantic Sturgeon recovery. Accordingly, the ESA requires that a proposed action will not jeopardize the recovery of a listed species, and the prevention of recovery, much like the destruction of critical habitat, triggers the provisions of the ESA. Nat’? Wildlife Fed’n, 524 F. 3d at 931. 3.Shore Birds There are a variety of bird species that live in and around the St. Johns River. The Piping Plover, Wood Stork, and Red Knot are species that are listed as either endangered or threatened by the ESA. The SEIS did not even address the impacts of dredging on the birds, but rather summarily described how the different species are present in the area. Any activity that may affect listed species must be analyzed for its potential effects, “whether beneficial, benign, adverse, or of an undetermined character” occurs. Cir. for Biological Diversity, 698 F. 3d at 1101. The SEIS must address all impacts, or its decision will be found to be arbitrary and capricious. 4.North Atlantic Right Whale The proposed action may affect the North Atlantic Right Whale population. The Right Whale is one of the most endangered marine mammals in the world, and the National Marine Fisheries Service (“NMFS”) has stated that the death of even one from non-natural causes could lead to extinction of the species. Moreover, the expansion of port facilities is particularly relevant for this imperiled species as “[cJollisions with ships are the single largest cause of right whale mortality in the western North Atlantic.” 71 Fed. Reg. 77,704, 77,710 (Dec. 27, 2006). ‘The transit of dredged material will pass through critical habitat for wintering and calving Right Whales. Further, the depositing of dredged material may disrupt the patterns of whales in the coastal waters adjacent to the river. The traffic from ships through the St. Johns River may interfere and change the behavior of whales in the area because they will try to avoid ships coming through the water. According to the NMFS, the available evidence strongly suggests that the western population of North Atlantic right whale cannot sustain the number of deaths that result from ship strikes and fishing gear interactions. If the impact of these activities continues at current rates, itis likely to result in the extirpation of the western population of North Atlantic right whales. Given the low population size of North Atlantic right whales in the eastern Atlantic Ocean, the extirpation of right whales in the western Atlantic Ocean would render the entire species effectively extinct. 71 Fed. Reg. 77,714. The deepening of the St. Johns River will allow the river to accommodate more ships and larger ships, increasing the risk of collisions with whales. This concern was not addressed fully in the SEIS. As a result, consultation with the expert agency should be reinitiated due to the introduction of new information that affects a listed species. 50 C.F.R. § 402.16(b). The failure to fully address the effects of the proposed action on an extremely endangered species results in a determination that is unreasonable, arbitrary, and capricious. Oregon Natural Resource Council v. Marsh , 490 U.S. 360, 373-374 (1989). 5.Sea Turtles The proposed action may affect sea turtles on the beaches adjacent to the river. The placement of sand on or near the shoreline during construction could impact nesting and hatching sea turtles. In the past, beach renourishment projects have hindered nesting success for the first year after the project. Construction may affect nesting sea turtles in the following ways: it disturbs female nesting sea turtles that are attempting to nestwithin the construction area or adjacent beaches; it affects the behavior of the turtles, including false crawls or the selection of marginal or unsuitable areas to deposit eggs; it may destroy or damage existing nests; and the lighting during construction may disorient hatchling turtles near the construction area, Turtles have been known to rest on the bottom of a channel or bury themselves in soft sediment while resting. Dredging activities could injure or kill sea turtles that are not readily visible while resting in and around the channel. Pressure and noise have been shown to have an effect on sea turtles. There are studies that demonstrate that underwater explosions have killed and injured sea turtles, and untreated injuries could result in increased vulnerability of sea turtles to predators in the area.’ Nervous system damage was also cited as a possible impact to sea turtles caused by blasting (U.S. Department of Navy 1998 as cited in COE 20006). Damage of the nervous system could kill sea turtles through disorientation and subsequent drowning. The COE assumes that tolerance of turtles to blast overpressures is approximately equal to that of marine mammals. Id. ‘The United States Fish and Wildlife Service (USFWS) and NMFS listed the loggerhead sea turtle as threatened throughout its range in July 28, 1978. 43 Fed. Reg. 82,808. The northwest Atlantic population is considered threatened. Critical habitat is proposed for loggerhead sea turtles throughout much of the Atlantic along and off the coast of the Southeast United States and in the Gulf of Mexico. 76 Fed. Reg. 17,999. The proposed critical habitat unit closest to the project is designated as follows: LOGG-N-14—Southen Boundary of Kathryn Abbey Hanna Park to Matanzas Inlet, Duval and St. Johns Counties, Florida. This unit contains nearshore reproductive habitat only, but even slight disturbances to the sand may affect the behavior of any nesting turtles in the area, The FWC Fish and Wildlife Research Institute database shows that from 2007 through 2011, loggerhead sea turtles deposited 522 nests on Duval County beaches. The FWC recently performed a detailed statistical analysis of long-term loggerhead nesting data, finding an overall increase in nesting counts between 1989 and 2012. Any interference with the recovery of loggerhead sea turtles may violate the ESA. Nat'l Wildlife Fed’n, 524 F, 3d at 930-31. During previous dredging operations, the ACOE endangered species observers have occasionally seen loggerhead sea turtles within the study area. A review of the ACOE Sea Turtle Database indicates that hopper dredging within Jacksonville Harbor between 1994 and 2008 resulted in the taking of three loggerheads. All three takes occurred between St. Johns approximately River Mile 4 and the entrance channel. The Florida green turtle nesting aggregation is recognized as a regionally significant colony. Along northeast Florida beaches, the primary nesting season for green turtles is mid-May through August, Nassau and Duval County beaches together recorded 12 or fewer nests during 2007 through 2011. Green turtles have also been recorded by ACOE endangered species observers within the study area waters. The ACOE Sea Turtle Database indicates that hopper dredging within the Jacksonville Harbor between 1994 and 2008 resulted in the taking of one green turtle between St. Johns approximately River Mile 4 and the entrance channel. CLEAN WATER ACT VIOLATIONS The proposed deep dredging will violate both state and federal water quality standards in violation of Florida state law and the federal Clean Water Act, including the effect of dredging on dissolved oxygen (DO) levels in the St. Johns River and the impacts on wetlands adjacent to the river. 1.The ACOE Has Not Demonstrated That The Project Will Comply With The Applicable Water Quality Standards For Dissolved Oxygen 10Section 404(b)(1) of the Clean Water Act prohibits authorization of a discharge or dredged material that “causes or contributes, after consideration of disposal site dilution and dispersion, to violation of any applicable State water quality standard.” 40 C.F.R. § 230.10(b)(1). The ACOE has not demonstrated that the proposed project will comply with Section 404(b)(1) Guidelines, since it will likely cause and/or contribute to Dissolved Oxygen (DO) impairment and adversely impact fish and other aquatic resources in the river. Under criteria defined in Section 303(d) of the Clean Water Act, the St. Johns River has been designated by the Florida Department of Environmental Protection (FDEP) as impaired by nutrients based on elevated chlorophyll-a and Trophic State Index (TSI) levels. A Total Maximum Daily Load (TMDL) for total phosphorus and total nitrogen has been established to restore the river, so that it meets its applicable water quality criteria for nutrients and dissolved oxygen. Further, salinity changes as a result of the project could result in phytoplankton blooms, which in turn decrease DO levels. Certain endangered species like the Atlantic Sturgeon are sensitive to low DO that could be exacerbated by water withdrawal or diversion. To properly analyze the effects of the proposed dredging of the St. Johns River on its water quality, it is important to understand the applicable water quality standards for DO. DO is necessary for nearly all forms of aquatic life and is a basic engine fuel for biological activity. Florida classifies waters of the state by the designated uses of the water body, and the St. Johns River, including all of its tributaries, is classified as a Class III water body. Fla. Admin. Code r. 63-302. A Class III water body’s designated uses are mainly recreation and fishing. Therefore, the water quality criteria are aimed at protecting the river’s ability to provide swimming for citizens and to protect wildlife in the river. The water quality standards for DO in a Class III freshwater water body provide for a daily average that is not less than 5 milligrams per liter in a 24-hour period, and a daily average that is not less than 4 milligrams per liter in the estuarine area of the river. Fla. Admin, Code r. 62- 302.530(30). The estuarine river is also subject to a site-specific alternative criterion (SSAC) based on the number of days per year DO is within the 4.0 to 5.0 milligrams per liter range. An SSAC value of > 1.0 exceeds the SSAC criterion. Id. r 62-302.800(6)(a). Although the SEIS addresses the DO levels of the St. Johns River, it states that the DO levels meet the water quality criteria, and that the DO values vary seasonally with the lowest levels occurring in the summer. Consequently, the ACOE has determined that, as a result of their simulations, the proposed project will cause little or no adverse effect on DO levels. However, one of the factors that can impact the DO levels is the amount of nutrients released into the river. The model in the SEIS does not address the likelihood that sediments disturbed during the process of dredging the river will liberate stocks of nutrients like phosphorus and nitrogen causing algal blooms that deplete the oxygen in the water when those algal blooms decompose. As a result, the SEIS fails to include a sufficient discussion about potential impacts on DO and the subsequent impact that would have on fish, other aquatic life, businesses and people. The Section 404(b)(1) Guidelines prohibit authorization of dredged or fill material that “[cJauses or contributes, after consideration of disposal site dilution and dispersion, to violations of any applicable State water quality standard.” 40 C.F.R. § 230.1061). The proposed project would cause and contribute to violation of water quality standards. ECONOMIC FAILURE A multi-port economic analysis assessing the competition among regional ports has not been conducted. As a result, the financial risk has not been completely vetted. This is not in the best interest of the public, and in akparticular, the City of Jacksonville. Furthermore, the lack of this important information results in a failure to demonstrate a federal interest in the project. On July 12, 2013, Battelle Memorial Institute, at the request of the ACOE, prepared an Independent External Peer Review Report: Jacksonville Harbor, Florida Navigation Project Integrated General Reevaluation Report (GRR2) and Supplemental Environmental Impact Statement (SEIS) (“Peer Review”). In that Peer Review, Battelle identified several major issues, which were not resolved fully by the GRR2 and SEIS. The Economic Appendix of the SEIS’ admits there is a possible redundancy of having deepened ports in both Savannah and Jacksonville. However, the SEIS dismisses the need for a multi-port analysis by making misguided and simplistic assumptions not supported by data or industry forecasts. The SEIS erroneously assumes that “each seaport will continue to retain its historical share of regional cargo throughput” simply because these “regional competitors will make similar strategic decisions” in response “to the needs of global maritime freight transportation industry.” The Corps goes on to use anecdotal examples of the MOL TraPac terminal in Jacksonville and an undefined number of services that call on both ports as evidence for this conclusion and justification for the deepening of the Jacksonville harbor.’ In a manner consistent with other problems identified in the Peer Review, this reasoning provides no quantitative analysis regarding the number of voyages that call on both Savannah and Jacksonville, ignoring recent trends and comparative throughput data, Even the ACOE is on record calling Savannah the “port of choice in the Southeast.” The issues with the SEIS identified in the Peer Review are: A) Federal interest has not been demonstrated in the General Reevaluation Report Il (GRR2) because a multi-port analysis assessing competition among regional ports is not provided; B) The methods and assumptions used to develop the economic analysis are not sufficiently documented; and C) The National Economic Development (NED) benefits identified in the economic analysis cannot be verified, because the economic risk and uncertainty analysis is not documented. Additionally, the ACOE has not followed its own guidelines’, or the guidelines contained in the 1983 Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies (“1983 Guidelines”), which was cited in the Record of Decision, in preparing the GRR2 and SEIS. In December of 2008, the ACOE wrote an IWR White Paper, The Implications of Panama Canal Expansion to US. Ports and Coastal Navigation Analysis (“IWR Paper”). The purpose of the WR paper was to address uncertainties about the timing and impact of the Panama Canal expansion on United States ports from an economic perspective. The IWR Paper recommends that each Corps district make their own educated ‘guesses regarding the benefits to their respective ports from an expanded canal.” A common flaw in economic assessment in GRRs is that “too often, Corps economists zero in on their District’s port of study and hinterlands, irrespective to other ongoing deepening projects/studies. Multi-port and regional port analyses are generally viewed as too complex or with little payoff to the district.”* > Appendix B to the SEIS 4 Appendix B to SEIS, p. 6 ® Savannah Harbor Expansion Project: Georgia and South Carolina, Civil Works Review Board, March 22, 201; 7 tp:/www.usace.army.mi/Portals2/docs/civilworks/CWRB/savarinah/savannah_slides.pdf (last visited April 14, 2015). ©The USACE has a Manual containing standards on how this type of project must be evaluated. See U.S. Army Corps of Engineers, Planning Guidance Notebook, ER 1105-2-100 (April 2000), 7 See IWR Paper, p. 18 * See IWR Paper p. 18 12The proposed deepening of the St. Johns River is just another example of this frequent shortcoming in economic analysis by the Corps. The Peer Review Report raised concerns that the “Federal interest has not been demonstrated in the General Reevaluation Report II (GRR2) because a multi-port analysis assessing competition among regional ports is not provided.” As a result, the ACOE indicated that a multi-port analysis would be conducted.” Yet, less than a year later, the ACOE released the SEIS, stating in part that a multi-port analysis would not be necessary. According to the Peer Review Report, no “sound rationale for excluding such analysis” was provided and the “lack of documentation of the economic analysis prevents the Panel from accurately assessing the project's economic performance.”'” Further, there is no documentation of any interviews conducted on the topic. This is in violation of the U.S. Army Corps of Engineers, Planning Guidance Notebook, ER 1105-2-100 (April 2000) (“PGN”), which discusses multi-port analysis, and states in pertinent part: “{tJhe data needed for such a determination are often difficult to obtain; therefore, interviews with knowledgeable experts will often have to be relied upon.”!! Additionally, when port expansion was discussed in 2008, the ACOE stated: “[mluch of the project's benefits are derived from savings in landside (trucking) costs as the improvements would likely divert cargo away from other ports.”!? The statements in the SEIS directly contradict this statement, assuming that Jacksonville will retain its historic share of the commodity volume moving through the area, while supplying no authority or methodology.' However, Jacksonville is more likely to be a port that gets diverted from rather than diverted to, for several reasons, the first of which is growth. ‘Additionally, the proximity and pull of Charleston and Savannah and their competitive advantages have been drastically underrated, if not outright dismissed in the analysis of the Jacksonville project. In 2013, Charleston had 50% more traffic than Jacksonville, while Savannah had 300% more traffic than Jacksonville. Currently, Charleston and Savannah are both deeper than the Jacksonville port, and will be just as deep or deeper after all three cities complete their projects. Further, both cities are projected to beat Jacksonville to the punch on project completion. Also, the non-Federal share of the total cost that Jacksonville must pay is more than Charleston and Savannah for the project, putting it further behind.'* According to the PGN, “[a] port study must recognize the degrees to which the ships that call or might call at that port are part of a larger waterborne transportation system. US ports operate in a system(s). A study that appropriately considers a port in isolation will be rare. In such a case the report shall document why systems considerations are not relevant.”'* The SEIS has not recognized the unique situation faced by Jacksonville, which required a multi-port study. Additionally, eschewing the possibility of diversion to or from competing ports and instead relying on cetibus paribus lacks merit, documentation, and methodology, and flies in the face of common sense. It certainly does not document with enough authority as to why Jacksonville is the “rare” exception that does not require a multi-port study. ° Peer ‘Study p. A-1 1 See Peer Review p. iii ™ See PGN, Appendix E, page 49, paragraph 1 " See IWR Paper p. 10 © SEIS, Appendix B, Paragraph 3.3.2.2 p. 75 ™ See Peter Haden, Jacksonville Split Over Joining a Southern Port Dredging Frenzy (Nov. 26, 2014), available online at: http://www npr.org/2014/11/26/366615226/jacksonville-split-over-joining-a-southern-port-dredaing-frenzy (last visited April 14, 2015). 15 see PGN, Appendix E, page 49, paragraphs (1)(c) and (1)(d) 13Further, this assumption violates the 1983 Guidelines, cited in the ROD, which instructs the decision maker to “[cJonsider diversion from or to adjacent competitive harbors as well as distribution via competing modes of transport.”"® The National Economic Development (NED) Benefits Identified In The Economic Analysis Cannot Be Verified The ACOE failed to consider two largely imminent trends that could render Southeastern ports less desirable than Northeastern ports in the coming years. First, “[iJf the manufacturing centroid shifis from Northeastern China to Western India, as a recent Global Insight report suggests, a shipping route to New York would be 3,308 miles closer via the Suez Canal, or alternatively, 3,308 miles further from the Panama Canal, This might favor ports in the Northeast as a first port of call.”!” Second, “{rJecent climate models indicate the Northwest Passage could be ice-free for up to 9 months by the year 2030. Instead of using the Panama Canal, carriers could bring cargo from Northeast Asia directly to the US East Coast via the Passage. This again might favor the Northeast ports as a first port of call and de-emphasize ports in the Southeast and Gulf.”"* The SEIS has also failed to consider the effect of harbor deepening projects at non-US ports. For example, nearby Freeport, Bahamas currently has a depth of 52 feet and “could become much like a hub airport- - large Post-Panamax vessels could arrive at Freeport and then transfer cargo onto smaller vessels destined for other US ports.” In addition, Mariel, Cuba has a deepwater port 30 miles from Havana and 120 miles from Florida that will be dredged to a depth of 58 feet before any of the Southeastern US projects are completed. The Cuban government has also created strong incentives for foreign lines to operate in Mariel, including: a 180 square mile special economic zone surrounding the,port, 50 year contracts, 100% ownership of assets, tax-free operation for ten years, and no tariffs on machinery. In sum, the economic analysis in the SEIS did not address the concerns from the Peer Review, did not follow USACE guidelines in the PGN, and did not follow the requirements of the 1983 Guidelines. As a result, the USACE has failed to paint an accurate picture regarding the economic benefits of a deeper Jacksonville port. Given existing data, the decision makers should have conducted a multi-port analysis or adequately explained and justified their decision for not conducting one. The methods and assumptions used by the USACE to develop forecasts, quantify risk and assess uncertainty factors, particularly from international ports, were not sufficiently documented, has resulting in questionable National Economic Development benefits that, could not be verified. CONCLUSION The issues raised herein with respect to this project, from the species at risk to the taxpayers seeking a responsible expenditure of funds, deserve a prompt response. It appears that ACOE has forgotten that the St. Johns River was officially designated an American Heritage River in 1998 in recognition of its ecological, See 1983 Guidelines, 2.7.4(a) See IWR Paper p. 11 'S See IWR Paper p. 11 °° See IWR Paper p. 11 ?° Tim Johnson, US-Cuba Diplomatic Thaw Puts Mariel Port Back in Spotlight (Jan. 21, 2015) available at: Jntp//www.meclatchyde.com/2015/01/21/253855/us-cuba-diplomatic-thaw-puts-mariel.html (last visited April 15, 2015). 14historic, economic and cultural significance. That designation “raises the bar” for both the ACOE and the subsequent review of the ACOE’s administrative decision. Until such time as the issues raised herein and in the public comments to the SEIS are appropriately addressed by the ACOE, St. Johns Riverkeeper will pursue all available options to protect the St. Johns River from this massive dredging project, including federal litigation. The ESA citizen suit provision, 16 U.S.C. § 1540(g), provides that Plaintiffs may institute a civil action 60 days following the date of this notice. The ESA farther provides that Plaintiffs may seek declaratory and injunctive relief as appropriate, as well as recovery of Plaintiff's costs and expert and attorney's fees. The Equal Access to Justice Act also permits the recovery of fees and costs. If you have any questions, please contact me. Thank you for your prompt attention to this matter affecting all of us here in Northeast Florida. Ign€ West, Esq. ‘tomey for St. Johns Riverkeeper ce: Lieutenant General Thomas P. Bostick Eric P, Summa, Chief Environmental Branch 15