April 1, 2014

District Engineer
U.S. Army Corps of Engineers Jacksonville District
701 San Marco Blvd Ste 4W
Jacksonville, FL 32207

Mr. Edgar W. Garcia

Project Manager
Antilles Regulatory Section
7 ½ Antilles Office
400 Ave. Fernández Juncos
San Juan, PR 00901-3223

Re: Permit Application No. SAJ-1976-89037 (SP-EWG)

Dear Mr. Garcia:

On behalf of the Animal Welfare Institute (AWI), I am writing with regard to the application for
permits under Section 404 of the Clean Water Act and Section 10 of the River and Harbors Act
of 1899, submitted to the Corps by Coral World (VI), Inc., for the construction of a nearshore
dolphin exhibit enclosure and a land side support and visitor education center at Coral World
Ocean Park located in Water Bay, St. Thomas, U.S. Virgin Islands.

The purpose of this letter is to remind the U.S. Army Corps of Engineers (hereafter “Corps”) that
Section 7(a)(4) of the Endangered Species Act (“ESA”) requires it to “confer” with the National
Marine Fisheries Service (“NMFS”) and/or the U.S. Fish and Wildlife Service (“USFWS”),
(together, “the Services”) on any proposed project that is “likely to jeopardize the continued
existence of any species proposed to be listed [under the ESA] or result in the destruction or
adverse modification of [proposed] critical habitat” (emphasis added). In addition, as the Corps
must be aware, Section 7(d) of the ESA prohibits the commitment of resources on a proposed
project by the permit applicant in certain circumstances pending completion of consultation. As
explained below, AWI urges the Corps to comply with its mandate to confer with the Services,
as required by the ESA, and to voice opposition to the applicant’s ill-advised decision to commit
resources to the project even though agency consultation is not yet complete.

In its November 7, 2013 public notice of receipt of the permit application, the Corps determined
that this project “may affect” five species listed as endangered—Elkhorn coral (Acropora
palmata), Staghorn coral (Acropora cervicornis), and the hawksbill (Eretmochelys imbricate),
leatherback (Dermochelys coriacea), and green (Chelonia mydas) sea turtles—or their
designated critical habitat, and that it would request the Services’ concurrence with this
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April 1, 2014
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determination under Section 7(a)(2). The public notice, however, failed to mention the existence
within the footprint of the proposed dolphin enclosure of two species proposed for listing as
endangered, the boulder star coral (Montastrea annularis) and the Pillar coral (Dendrogyra
cylindrus),1 and thus failed to disclose the Section 7(a)(4) conference obligations with respect to
these species. This oversight occurred despite the fact that Coral World stated, in an
Environmental Assessment Report (EAR) accompanying its application, that boulder star coral
“occurs within the footprint of the enclosure and will require relocation.”2

In light of these omissions and in consideration of the requirements in Section 7(a)(4) of the
ESA, the Corps is mandated to confer with NMFS regarding the potential impact of the Coral
World project to these species for both the proposed land side and water-based work. Indeed, the
Services’ Consultation Handbook encourages “the formation of partnerships to conserve
candidate species since these species by definition may warrant future protection under the
Act.”3

During the informal conference deliberations, either Service would issue a “conference report,”
in which it “make[s] advisory recommendations, if any, on ways to minimize or avoid adverse
effects.”4 The preparation of a conference report for the boulder star coral and/or Pillar coral is
prudent, particularly given that NMFS plans to finalize the rule listing these species in June 2014
and to designate critical habitat for these species soon thereafter. As indicated in the Consultation
Handbook, “as soon as a listing becomes effective, the prohibition against jeopardy or adverse
modification applies regardless of the [project’s] stage of completion. Therefore, [the Corps]
should utilize [a] conference report’s recommendations to avoid likely future conflicts” with
these two species of coral and their likely critical habitat (which may include areas within the
project footprint).5

Further, AWI notes that Coral World recently began construction on the upland portion of the
project.6 In its EAR, Coral World admits that “during upland construction soils will be disturbed
and a potential for sedimentation and erosion will be created,” which could adversely impact the
coral species proposed for listing, the listed sea turtles, and the endangered elkhorn and staghorn
corals located “just outside the project site.”7

In 1977, NOAA Fisheries/NMFS and the USFWS “signed a Memorandum of Understanding to

jointly administer the ESA with respect to sea turtles,” such that NMFS “has the lead
responsibility for the conservation and recovery of sea turtles in the marine environment and

1
See 78 Fed. Reg. 57,835 (Sept. 20, 2013).
2
Coral WORLD (VI), INC., EMERICH ASSOCS. ARCHITECTS & BIOIMPACT, INC., Envt’l Assessment Rep. for the
Construction of New Dolphin Habitat and Encounter Facilities at Coral World Ocean Park, at 16 (Oct. 2012).
3
U.S. FISH AND WILDLIFE SERV. & NMFS, ENDANGERED SPECIES CONSULTATION HANDBOOK, at § 6.2 (Mar. 1998).
4
50 C.F.R. § 402.10(c).
5
CONSULTATION HANDBOOK, supra note 3, at § 6.2(A).
6
See Aldeth Lewin, Coral World Dolphinarium Work Under Way on Land, VIRGIN ISLAND DAILY NEWS (Mar. 3,
2014), http://virginislandsdailynews.com/news/coral-world-dolphinarium-work-under-way-on-land-1.1643976.
7
Ent’l Assessment Rep., supra note 2, at 16.
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USFWS has the lead for the conservation and recovery of sea turtles on nesting beaches.”8 AWI
reminds the Corps that consultation with both agencies is required with regard to sea turtles.
AWI is particularly concerned that the applicant is apparently beginning construction without the
Corps having first consulted with the USFWS. Construction on land could cause direct and/or
indirect lighting impacts to the sea turtle habitat and possibly even to nesting grounds. Further
and immediate investigation of the circumstances is needed.

Furthermore, the decision to proceed with construction clearly violates Section 7(d) of the ESA,
which mandates that “the permitor license applicant shall not make any irreversible or
irretrievable commitment of resources with respect to the agency action which has the effect of
foreclosing the formulation or implementation of any reasonable and prudent alternative
measures” during required consultation under Section 7(a)(2).9 A principal purpose of Section
7(d) is “to prevent Federal agencies from ‘steamrolling’ activity in order to secure completion of
projects regardless of their impact on endangered species.”10 The Consultation Handbook
reiterates this requirement based partially on the fact that an “irreversible and irretrievable
commitment of resources precluding formulation or implementation of reasonable and prudent
alternatives” “cannot be made between the ‘may affect’ finding and the conclusion of formal
consultation.”11

As stated above, the Corps has already made a determination that the project “may affect” five
species listed as endangered, and the permit applicant admits that the project will impact the two
species of coral proposed for listing. It is likely that the upland construction by Coral World will
foreclose the formulation and implementation of reasonable and prudent alternative measures
because the construction as a practical matter prevents the Corps’ consideration of additional
sedimentation and erosion control measures, alternative configurations for the dock and pen
structures, and alternative land-based locations for the project. Therefore, the Corps must request
that Coral World halt upland construction while it fulfills its consultation and conference
requirements.

Finally, AWI wishes to express its concerns with Coral World’s claims that the project will not
adversely affect the endangered coral species located outside the footprint of the project due to
flushing of the enclosure area. Given the protections afforded to listed species and species
proposed for listing under the ESA, the proposed project must be the subject of focused studies
examining how this concentration of wastes might affect these coral species in Water Bay. Until
the permit applicant provides the Corps with data specific to Water Bay or a coastal embayment
with similar water flow and flushing characteristics, any decision on the permit application

8
See NOAA Fisheries Office of Protected Resources, Sea Turtles, http://www.nmfs.noaa.gov/pr/species/turtles/ (last
visited March 24, 2013).
9
Section 7(a)(2) requires federal agencies to ensure that any actions they take are “not likely to jeopardize the
continued existence of any [listed] species or result in the destruction or adverse modification of [designated critical]
habitat.”
10
North Slope Borough v. Andrus, 486 F. Supp. 332, 356 (D.D.C. 1980), aff'd in part and rev’d in part on other
grounds, 642 F.2d 589 (D.C. Cir. 1980). More recently, the U.S. Court of Appeals for the Ninth Circuit observed
that “[S]ection 7(d) clarifies the requirements of [S]ection 7 (a), ensuring that the status quo will be maintained
during the consultation process.” Conner v. Burford, 848 F.2d 1441, 1455 n.34 (9th Cir. 1988) (citation omitted).
11
CONSULTATION HANDBOOK, supra note 3, at 6-10.
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April 1, 2014
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would be at best premature. It is irrelevant that Coral World does not anticipate that the project
will adversely impact listed species or proposed listed species. It is crucial that the Corps work
with the Services to ensure that the project minimizes any impacts to such species.

In conclusion, this nearshore dolphin exhibit project and associated land construction may
adversely affect listed species of coral and sea turtles, designated critical habitat, and species of
coral designated to be listed as endangered in just a few months. Accordingly, in addition to
rigorous compliance with Section 7(a)(2) consultation requirements, the Corps should engage in
informal conference under Section 7(a)(4) before any resources are committed to this project.

If you wish to discuss this letter, please feel free to contact our General Counsel at
Georgia@awionline.org or (202) 654-2122.

Sincerely,

Susan Millward
Executive Director
cc: Dr. Lisamarie Carrubba
Protected Resources Division
Caribbean Field Office
U.S. National Marine Fisheries Services
P.O. Box 1310
Boqueron, PR 00622