It was disrespectful of St. Croix citizens for the Senate Committee on Planning and Natural Resources to hold a decision meeting on St. John for a proposed billion dollar St. Croix project. In fairness, June 8 the Committee had held over seven hours of hearings on St. Croix on the major Coastal Zone Management (CZM) permit for the Seven Hills Beach Resort & Casino, and I was given adequate time to testify and take questions. But only two Senate committee members attended the June 8 hearing. In scheduling the decision meeting at the convenience of those Senators who were otherwise occupied during the St. Croix hearing, the Senate Committee disrespected Crucians who may also have had schedule conflicts June 8, and denied an opportunity for interaction between the St. Croix community and the Senators actually voting on the motion. (Only Committee Chair Shawn-Michael Malone attended both hearings).
Of greater concern than the political incorrectness of the decision meeting location, however are the substantive issues ignored or discounted by the Committee on Planning and Natural Resources in recommending approval of the project by the full Senate.
In the very week of a three-day workshop attended by representatives of the National Renewable Energy Laboratory, Office of the Governor, VI Water and Power Authority, VI Energy Office, University of the Virgin Islands and others on development of a comprehensive strategy to achieve a 60% reduction in USVI dependence on fuel oil, the Committee on Planning and Natural Resources approved a project that includes generation of at least eight megawatts (8 MW) of energy from combustion of diesel oil.
How is 8 MW of new energy generation from combustion from diesel fuel consistent with the Governor’s and VI Energy Office’s 2025 goal for 60% reduction in dependence upon fuel oil? Is the Seven Hills site zoned for a utility-scale power plant? Will an 8 MW power plant require a major new source Prevention of Significant Deterioration (PSD) air quality permit from the US Environmental Protection Agency (USEPA); and if so, has the one year (or longer) PSD permit process been included in Seven Hills’ projected timeline? And, what will be the public health risks from additional air pollutant emissions on the south shore St. Croix, an airshed already near allowable USEPA ambient air quality limits for some pollutants?
According to the Seven Hills Environmental Assessment Report (EAR), 60,000 gallons of diesel oil – enough fuel to operate the power plant for seven days – will be stored on site. How will 60,000 gallons of diesel fuel be transported to the site per week? By sea? By road?
Senate legal counsel Yvonne Tharpes asked in the June 18 hearing if a spill management plan has been provided by the applicant. The answer from Seven Hills’ architect Tracy Roberts – no, not yet. Attorney Tharpes followed with a reference to a 1994 federal court decision (Virgin Islands Conservation Society v. the VI Board of Land Use Appeals, VI Coastal Zone Management Commission, and Sugar Bay Land Development, LTD) in which U.S. District Court Judge Stanley S. Brotman wrote:
“…. the CZM Committee is statutorily required to gauge the environmental impact of each project and to explore possible mitigative measures before granting a permit….”
“Adequate review and investigation of permit applications serves as the lynchpin of the VICZMA. To ensure adequate review, the legislature requires the CZM Committee to make certain findings before ever issuing a permit. Accordingly, the Committee must require all information reasonably necessary before making the delicate judgments required by the VICZMA.”
CZM permit incorporates by reference the December 5, 2008 Seven Hills EAR – a document that fails to address comments from SEA, DPNR Division of Fish and Wildlife (DFW) and other testifiers. The EAR edition incorporated by reference in the CZM permit even pre-dates the Spring 2009 EAR “Public Comment Draft” available to SEA and the public for review and comment. Thus the project description incorporated by reference in the legally-binding CZM permit does not include updates or project adjustments made by the applicant subsequent to December 5, 2008, except those covered by special comments listed in the permit currently before the Senate for approval.
SEA is very concerned with the lack of specificity in the Seven Hills CZM permit special conditions – especially for a project where project financing is not in place, according to June 8 testimony of project representative, David Kagan. Lack of financing provides a clear opportunity for transfer of the property (with current CZM special permit conditions) to a new owner, who will have no legal obligations to adopt project modifications or any good intentions expressed by representatives of the Seven Hills project.
Referring to the Army Corps of Engineers (USACE) Final Mitigation plans, Amy Dempsey testified at the June 8 hearing: “when permits change hands, things get lost.” Ms. Dempsey went on to assert that a “final mitigation plan is a legally binding document,” stressing that the new USACE rule “guarantees that mitigation will get done.” While referencing a different permit, Ms. Dempsey precisely makes SEA’s point concerning the need for specific, written permit special conditions: things get lost when permits change hands. The good will expressed by the applicant in testimony is not included in the special conditions, i.e. is not included in a legally binding document, and is therefore at risk getting lost if the property with deficient CZM permit conditions changes hands.
The CZM Commission failed to provide a scientific basis for the 50’ wetland setback special condition in the face of science-based recommendations for a 130’ setback from DFW (22/12/2008 and 12/022009 written comments on the Seven Hills CZM permit application), and a science-based 300’ setback recommendation by SEA and others. If CZM is going to reject the 130’ setback recommendation of DPNR’s own Division of Fish and Wildlife, they should be required to support the 50’ special condition with their own science.
While SEA appreciates the challenge before the Senate to reconcile potential conflicts between conservation and economic development, territorial law (VICZMA §905(d)) establishes that when a conflict arises between protection of the environment in the coastal zone and promotion of economic development in the coastal zone, the conflict must be resolved “in the manner which is the most protective of significant coastal resources.”
SEA’s position is in fact that protection of the coastal environment is not in conflict with long term economic development. Environmental protection directly supports tourism and fisheries sectors, and generally fosters sustainable economic development and a higher quality of life for the people of St. Croix, along with our wildlife populations.
I certainly hope that in consideration of approval or disapproval of the Seven Hills Beach Resort & Casino major CZM permit, the full Senate will have the wisdom to a) heed the legal opinion of Senate counsel Yvonne Tharpe, and b) hold testimony on the permit decision on the island of St. Croix.
Paul Chakroff, Executive Director/St. Croix Environmental Association