By Dan Tonsmeire – Apalachicola Riverkeeper
Waterkeepers that have fought poorly developed EISs by the USACE have realized amazing similarities in the flaws that inevitably require litigation to remedy. See the examples at the end of the article. As members of the Water Protection Network, we are not surprised by this. However, consideration of the commonalities in these cases makes one wonder exactly why this agency is leading the development of our nation’s water resources, at a time of possibly the greatest environmental awareness in recorded U.S. history. Asking this question offered some revealing answers.
The Panama Canal upgrade to handle Panamax Ships spawned expectations of a large increase in shipping by deeper draft ships (47’-50’). The Gulf and Atlantic seaports agreed to spend millions deepening and expanding the channels that access their existing ports. Having never seen a river or harbor channel that they could not make deeper and wider to accommodate shipping, the Corps went to work to make these ports accessible, despite that the 2012 USACE Modernization Study determined the East Coast only needed 3 deep water ports to handle Post Panamax Ships.
Consequently, Harbor expansions are in the works for Delaware River, Savannah River, St. John’s River, Fort Lauderdale Port Everglades, and Miami. In each case, the environmental impact estimates by the The USACE was found to be incorrect due to similar flaws, including, but not limited to:
- Use of inappropriate baseline
- Flawed data
- Model input of flawed data provided indefensible results
- Other federal agencies comments and Independent Peer Reviews were ignored
- Studies were misinterpreted
Avoiding responsibility for impacts is commonly used by the USACE to avoid mitigation. In many cases, the local sponsor, such as the County, agrees to accept liability over the mitigation. In the case of the Apalachicola, the Corps just simply denies impacts.
Does anyone have a story where the Corps developed an accurate and acceptable EIS to the environmental community? Please let me know if you know of one.
Is the USACE the wrong entity to be doing the EISs?
A more pragmatic approach may be for the resource agencies that do understand ecological processes and impacts to lead the EIS process and development. The Corps as the engineer can create the design for the project around the best environmental alternative recommended in the EIS. This could save millions of dollars in legal cost and delays to projects, and drastically reduce the environmental impacts.
The examples below demonstrate the common problems with EISs developed by USACE. These examples include projects ranging from port expansions to pipelines and a river system water control manual to round out the mix.
Port of Miami Expansion Project – The EIS was completed almost 10 years before the project started and was not updated to include the Endangered Species Act listing of staghorn corals that occurred after the EIS was completed. The EIS drastically underestimated the area and severity of impact to the reefs by dredging sediment, which reached to over 1000m from the shipping channel (not the 150m that they had predicted). In the end, more than 250 acres of coral reef were buried with sediment. USACE contractors also misrepresented the scale and scope of the impact using faulty scientific assessments. The Corps twice used photos from the wrong location and time to attempt to show no impacts (e.g. they used a photo from the Cayman Islands in 1992 to demonstrate that there was no impact to Miami’s reefs during the 2014 dredging.) Miami Waterkeeper and co-plaintiffs filed an ESA action against the USACE.
Fort Lauderdale Port Everglades – Failing to learn lessons from Miami and neglecting to incorporate “best available science” into their EIS for the dredging of Port Everglades, the USACE did not update their EIS based on the dramatic impacts that occurred during the dredging at Miami. Miami Waterkeeper filed an ESA and NEPA suit against the Corps. The Corps have now agreed to delay the dredging for two years and redo their NEPA and ESA assessments. If they are still inadequate, Miami Waterkeeper and co-plaintiffs can reactivate the litigation.
St. Johns Riverkeeper
The Jacksonville Port Expansion EIS was fast tracked to accommodate Post Panamax Ships. Project data and model underestimated impacts that would result in increased salt water intrusion and damage to wetlands for miles up the St. Johns River. Determinations regarding induced flood potential contradicted the storm surge analysis. USACE failed to fully assess Storm Surge, Flooding, Saltwater Intrusion, tributary connectivity and resulting impacts to environment. Issues raised by other federal agencies, the official USACE Independent External Peer Review and stakeholders were ignored.
The Savannah and Delaware Riverkeeper organizations had the same type of problems with their port expansion projects. Ultimately, the Savannah River Harbor Port Expansion managed to overcome the same misinformed and under estimation of impacts and worked with other co-plaintiffs to develop an adaptive management approach to get improvements to the dredging methods and operations and a mitigation package worth $47 million in restoration and conservation. The Savannah Project also had the advantage of required sign off of EPA, NOAA, and other federal agencies.
These problems extent to EISs for other type projects.
Apalachicola-Chattahoochee-Flint (ACF) River System Water Control Manual Update – Although not a port expansion, the USACE was completing the first revision of its Master Water Control Manual since 1958, to define the rules for releasing water out of 5 federal reservoirs on the Chattahoochee River in Georgia. The EIS ignored impacts to flows needed to sustain ecological functions on the Apalachicola River Floodplain and Bay. U.S. Fish and Wildlife Service offered to work with USACE to assess data to achieve better environmental alternatives. The offer was never accepted. Adaptive Management required in the Biological Opinion was partially accepted, but the USACE admitted it will not change its operations based on any of the findings. The shortcomings and numerous inconsistencies and errors in the EIS with facts, data, and assumptions used by the USACE led National Wildlife Federation, Florida Wildlife Federation, and Apalachicola Riverkeeper to file a challenge based on violations of NEPA, APA, and WRDA.
Suwannee and Flint Riverkeeper had similar EIS issues on a pipeline project, and recently won their case to have the EIS redone.