We Filed for an Emergency Injunction Against U.S. Army Corps for Endangered Species Act Violations

Our lawsuit brings action to stop illegal take of threatened corals harmed during PortMiami Dredging Project

Sediments kicked up during the deep dredge project are reflecting light and making the water look milky or "turbid." These sediments are smothering our reefs.

Miami, FL (Oct. 6, 2014) - Biscayne Bay Waterkeeper, along with Captain Dan Kipnis, Miami-Dade Reef Guard Association, and Tropical Audubon Society, filed a complaint and a request for emergency injunctive relief this week in federal court against the U.S. Army Corps of Engineers, for violations of the Endangered Species Act (ESA) related to excessive sedimentation produced in the PortMiami Deep Dredge project.

Since the dredging commenced in November 2013, the Army Corps has failed to comply with a slew of permit and ESA requirements, to the detriment of our valuable local marine species. The Army Corps was also well aware that a large number of threatened staghorn coral colonies were living adjacent to the dredging area, and they failed to monitor or account for them. As a result, these corals have been irreparably damaged.

Miami’s reefs, and the fish and marine life they support , are critical to the survival of Miami’s tourism, diving, fishing, and seafood industries -- engines for the local economy.

Our suit is about more than just the Miami deep dredge project; it’s also about setting precedent for the rest of the port expansion projects planned up and down the coast of Florida; it’s about showing the state and federal enforcement agencies that the permit granted and the oversight conducted in Miami is not working.

Over the last few months, the Army Corps has refused to respond to our concerns, and they have not taken action to stop the impact. Since we filed our 60-day notice to sue letter in July, the evidence of coral damage has only become clearer. We now have reports from the County and the State, and recommendations from the National Marine Fisheries Service, that the damage to corals is severe and must stop.

It’s not our goal to stop this project altogether; we simply want to find a solution to the damage that is being done to our reefs. However, seeking this injunction is now our only option.

Here’s a summary of events since June:

• Early June: Scientists from University of Miami and Coral Morphologic engage in coral rescue mission and report excessive sediment damage to corals in the area of the deep dredge.
• July 8th: Miami Dade County's Division of Environmental Resource Management (DERM) performs an inspection of the reefs near the deep dredge project. They report widespread damage and heavy sedimentation and coral death. This inspection was conducted in response to a June 27th DERM dive trip to a reef 1500 ft S of the dredging area, where they found fine sediments and coral damage related to dredging. 

 A threatened staghorn coral surrounded by reef buried in 3-14cm of sediment deposited during the deep dredge project, as documented by the Department of Environmental Protection in their July Report   

• July 16: Biscayne Bay Waterkeeper and other groups send a 60 day notice to sue letter to the ACOE, after a lack of response to our concerns about compliance issues related to the Endangered Species Act and violations of their permit issued by the FL Dept of Environmental Protection (DEP).
• Week of July 21st: DEP biologists visit Miami to dive and inspect the Deep Dredge reef area.
• August 18th: DEP sends a warning letter to ACOE for several permit violations and widespread, "profound" Â reef damage, confirmed during their inspection. Â With the Warning Letter, DEP also sent a scathing set of "field notes" that include accounts by their biologists of the condition of the reefs and photographs. In this report, for example, they observe and document that the ACOE contractors deposited the "mitigation boulders" that were supposed to be placed in bare seafloor to encourage new reef formation, directly on top of living corals, crushing them. They also note that they were still seeing no end to the area impacted by dredge-related sediment in the area-- even on transects that ended 200 meters away from the channel.
• August 27th: ACOE completes the first of two surveys of the threatened staghorn coral in the area, under the advisement of NOAA. The goal of these surveys are to establish a monitoring program, essentially established for the ACOE to prove to NOAA that formal consultation and additional mitigation is not needed. However, the survey instead shows extensive damage and double the amount of stress for staghorn corals compared to a control site.
• Sept. 2nd: ACOE response to DEP's 8/18 warning letter is sent. In the document, they claim little to no responsibility for the damage observed on the reefs that has now been documented by both County and State agencies. ACOE, for example, suggests that recreational divers and boaters are possibly responsible for the coral damage done by the enormous "mitigation" boulders, which were placed directly on top of living corals.
• Sept 3rd: ACOE completes a sedimentation area impact report to determine additional mitigation. (This is a permit requirement when excess damage occurs that had not been accounted for pre-project.) However, there are many issues with this report. For example, the ACOE did not coordinate with DEP on the methodology for this determination, and they did not cover the entire area that has been impacted. Despite DEP noting impacts clearly beyond 200m, and DERM noting impacts at least 1500 ft from the dredging area, ACOE mitigation survey only covered out to 200m from the channel.
• Sept 2nd and 3rd: ACOE completes the second survey of staghorn corals and finds more dire stress. After the reports from this survey, sent Sept 5th to NOAA via email, NOAA issues its emergency recommendation to the ACOE.
• Sept. 10th: NOAA emails a recommendation for emergency action to halt impacts to threatened corals due to the deep dredge to ACOE.
• Sept 14th: ACOE formally reinitiates consultation with NOAA regarding the staghorn coral ESA requirements. (The lack of this formal consultation was included as a complaint in our 60 day notice to sue letter.) However, the ACOE consultation request issued is extremely narrow and does not, in our opinion, address all of the ESA issues related to this project.
• Sept 17th: The ACOE will not at this time agree to implement any emergency measures recommended by NOAA. A third survey of staghorn corals confirms continued and worsening damage.
• October 2^nd: BBWK and our partners filed a complaint in Federal Court asking for the project to be shut down until compliance can be obtained.
• October 3^rd: BBWK and our partners filed a request for an emergency injunction in Federal court, asking that the dredging be shut down immediately, while the complaint is being handled. We should hear about a hearing scheduled in the next few days to weeks.