September 30, 2014

U.S. Army Corps of Engineers, Jacksonville District

ATTN: Mr. Edgar Garcia
400 Fernandez Juncos Avenue
San Juan, PR 00901
edgar.w.garcia@usace.army.mil

Re: SAJ-1976-89037 (SP-EWG)

Dear Mr. Garcia:

The Animal Welfare Institute (AWI) submits the following comments in response to the U.S. Army Corps
of Engineers (Corps), Jacksonville District, Antilles Office notice dated August 25, 2014, announcing an
informal public meeting to be held on September 25, 2014 at 6 p.m., at Charles W. Turnbull Regional
Library, 4607 Tutu Park Mall, St. Thomas, USVI, to discuss the permit application for a nearshore dolphin
exhibit enclosure project at Coral World Ocean Park, Coki Bay, St. Thomas, U.S. Virgin Islands. AWI urges
the Corps to deny this permit application.

AWI has submitted numerous comments to the Corps and other entities with regard to this project.
These comments are attached hereto and incorporated by reference:

 December 11, 2012 AWI/HSI/WDC letter to the Coastal Zone Management (CZM) Commission in
response to a CZM public notice and request for comments (attached hereto as Exhibit A);
 November 30, 2013 AWI letter to the Corps in response to the November 7, 2013 public notice
and request for comments (attached hereto as Exhibit B);
 March 31, 2014 AWI letter to Mr. Austin M. Monsanto, Chairman, St. Thomas Committee of the
Virgin Islands CZM Commission, the Honorable John P. de Jongh, Jr., Governor of the Virgin
Islands, and the Honorable Shawn Michael Malone, President, 30th Legislature of the Virgin
Islands (attached hereto as Exhibit C);
 April 1, 2014 AWI letter to the Corps (PM Garcia) (attached hereto as Exhibit D).

Endangered Species Act Section 7: Newly Listed Coral Species

On August 27, 2014, NOAA announced it will provide new protection under the Endangered Species Act
(ESA) for 20 species of corals.1 Five of these newly listed coral species occur in the Caribbean: the Pillar

1
NOAA Press Release, NOAA lists 20 coral species as threatened under the Endangered Species Act (Aug. 27,
2014), available at http://www.fisheries.noaa.gov/stories/2014/08/docs/corals_press_release.pdf.
 Mr. Edgar Garcia
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coral (Dendrogyra cylindrus), lobed star coral (Orbicella annularis), mountainous star coral (Orbicella
faveolata), boulder star coral (Orbicella franksi), and rough cactus coral (Mycetophyllia ferox).2 NOAA
published the final rule for this listing in the Federal Register on September 10, 2014. 3

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 sea turtle (Eretmochelys imbricata), leatherback sea turtle
(Dermochelys coriacea), and green sea turtle (Chelonia mydas) —or their designated critical habitat, and
that it would request the concurrence of the National Marine Fisheries Services (NMFS) with this
determination under Section 7(a)(2).

Of the then-proposed and now officially listed as threatened species, the lobed star coral 4 (Orbicella
annularis, previously known as Montastraea annularis)5 occurs within the footprint of the project and is
proposed to be relocated. In addition, the pillar coral (Dendrogyra cylindrus) and the elkhorn coral
(Acropora palmata) occur within the impact zone of the project.6 Now that the new ESA listings are final,
the Corps is obligated under the ESA to engage in Section 7 consultation with NMFS with regard to these
newly designated threatened species as well.

Furthermore, new evidence presented by Mr. Duane Hausch, a diving instructor on St. Thomas, at the
September 25 public meeting indicates that elkhorn coral can be found within the footprint of the
project; information that was either ignored or missed by those preparing the Environmental
Assessment Report. This new evidence must also be considered during the consultation process.
Furthermore, to ensure that the consultation process is complete and that the impacts, direct and
indirect, to all ESA protected species are considered, the Corps, at a minimum, should engage in an
independent assessment of the site, utilizing an objective third party to survey the project footprint and
surrounding habitat for the presence of coral and other protected species.

Under Section 7(a)(2) of the ESA, federal agencies are required to engage in consultation with NMFS
and/or FWS to ensure that “any action authorized, funded, or carried out by such agency… is not likely

2
NOAA Final Listing Determinations on Proposal To List 66 Reef-Building Coral Species and To Reclassify Elkhorn
and Staghorn Corals, 79 Fed. Reg. 53,852 (Sept. 10, 2014).
3
Id.
4
According to a coral identification guide published by the Flower Garden Banks National Marine Sanctuary, a
NOAA facility located in the Gulf of Mexico off the coasts of Texas and Louisiana, the common name of Orbicella
annularis (formerly Montastraea annularis) is the lobed star coral (see:
http://flowergarden.noaa.gov/document_library/scidocs/coralguidebright.pdf).
5
World Register of Marine Species (WoRMS) taxon details, Orbicella annularis (Ellis & Solander, 1786)
http://www.marinespecies.org/aphia.php?p=taxdetails&id=758260 (last visited September 11, 2014).
6
See Environmental Assessment Report at 115.
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to jeopardize the continued existence of any endangered species or threatened species or result in the
adverse modification of habitat of such species…determined…to be critical.” 16 U.S.C. § 1536(a)(2).
Section 7 consultation is required for “any action [that] may affect listed species or critical habitat.” 50
C.F.R. § 402.14.

In this case, any harm constitutes a “take” under the ESA. Consequently, any relocation of protected
corals represents a take of a listed species and is prohibited. The Section 7 consultation process is
intended to determine if an otherwise prohibited take can be permitted and the circumstances under
which such take is allowed. Here, a “not likely to adversely affect” conclusion from the Section 7
consultation process would be inappropriate because any coral heads to be relocated will be directly
impacted and potentially harmed, while corals both close to and down-current from the enclosure will
be indirectly impacted by effluent from the dolphin enclosures. Another direct impact from the habitat
destruction that will result from constructing the dolphin enclosures is eliminating suitable settlement
sites for larval corals, potentially resulting in their injury or death. Hence, a “may adversely affect”
finding is appropriate in this case and, if made, must include reasonable and prudent measures to
minimize take.

Furthermore, the habitat of ESA-listed sea turtles will be affected by wave barriers and fencing around
the footprint of the enclosure, while sea grass beds close to and down-current from the enclosure will
be indirectly affected by effluent.

AWI would like to convey to the Corps, due in large part to the inevitable impact on these threatened
and endangered species, that it is highly inadvisable for NOAA to issue a concurrence for this project. As
iterated in NOAA’s recent rulemaking,

As part of this rule-making process, NOAA identified a number of threats to coral

ecosystems. Some of the most serious threats include: impacts related to climate
change (rising ocean temperatures, ocean acidification and disease), ecological effects
of fishing, and poor land-use practices.

NOAA will work with partners on mitigation measures and recovery plans for the
newly listed corals. These will likely include approaches that have shown success
elsewhere, such as watershed management, to address land-based sediment pollution
in the U.S. Virgin Islands and Hawaii, and restoration efforts in the Southeast where
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Page 4

NOAA and partners are transplanting corals grown in nurseries to help recover degraded
reefs.7 (Emphasis added.)

This project is a perfect example of a poor land-use practice that will result in sediment pollution. In
order to promote better watershed management, furthering the conservation of ESA-protected species,
this is a project that the involved federal agencies should not permit.

The Corps’ Clean Water Act Section 404 and Rivers and Harbors Act Section 10 Review

As covered in our November 2013 comments:

Sea pens and enclosures with direct links to the sea and located in coral reef habitat
pose a risk to reefs and coral. Cetaceans produce a significant amount of waste on a
daily basis, which is normally not concentrated in a single location (cetaceans can swim
up to 100 miles in a day). When several cetaceans are confined in an enclosure at a
discrete location, natural waste dispersal mechanisms are stymied. If flushing of the
enclosure area through tidal flow and/or current is inadequate, then…material,
consisting of organic debris, nutrients, and fecal coliform bacteria, can cause abnormal
levels of algal growth, which can smother and kill corals and also sea grass beds.
Biodiversity in such affected areas can decrease substantially – a study by Goreau8 in
2003 suggests that this negative impact on reefs near dolphin sea pens has already
occurred in Cozumel, Mexico.

The Coral World environmental assessment report cited only one study in its discussion
of mechanisms by which dolphin waste would be eliminated from the enclosure. Sazima
et al.9 reported in 2006 that dolphin waste is naturally consumed by certain fish species
that associate with dolphins. The environmental assessment report implied that this fish
consumption would reduce the dolphin waste burden inside and even outside the
enclosure substantially. However, Sazima et al. studied wild dolphins, making the
comparison an apples-and-oranges exercise from an ecological point of view. In
addition, the study focused on a different species (spinner dolphins) and an entirely

7
NOAA Press Release, NOAA lists 20 coral species as threatened under the Endangered Species Act (Aug. 27,
2014), supra note 1.
8
Goreau, T.J. 2003. Dolphin enclosures and algae distributions at Chankanaab, Cozumel: observations and
recommendations. Report of the Global Coral Reef Alliance, Cambridge, Massachusetts, available at:
http://www.globalcoral.org/Dolphin%20enclosures%20and%20algae%20distributions%20at%20Chankanaab,%20C
o.htm.
9
Sazima, I., C. Sazima, and J. Martins da Silva, Jr. 2006. Fishes associated with spinner dolphins at Fernando de
Noronha Archipelago, tropical Western Atlantic: An update and overview. Neotropical Ichthyology 4:451-455
 Mr. Edgar Garcia
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different ecosystem (and hemisphere – the study was conducted in Brazil). While it is
probable that some dolphin feces in Water Bay will be consumed by some fish, this is
unlikely to be a major mechanism of eliminating waste from the enclosure or outside it,
as 1) the waste will be concentrated in an artificial manner (see above) and 2) the fish
species in Water Bay will not rely on dolphin waste as a food source, given that wild
dolphins do not regularly inhabit this area and this type of scavenging relationship will
have had no opportunity to evolve as a result.

Coral World is also claiming that water quality overall in the area will not be affected by
the dolphin enclosure, either during construction or operation. These claims again are
difficult to evaluate without knowing more about the water movement in Water Bay
and the effect on that movement from the fencing and wave barrier to be installed –
information that was not disclosed in any detail in the permit application or the
environmental assessment report…Coral World provided water quality information for
several other facilities in its environmental assessment report, but no water movement
data for its own proposed facility – both of which are necessary to support any
comparison between two different sites.

It is squarely within the Corps’ responsibility under its Clean Water Act (CWA) Section 404/Rivers and
Harbors Act Section 10 review to consider these water quality impacts and resulting effects on ESA-
listed species.

[A]gencies should be particularly careful to consider potential direct, indirect, and

cumulative impacts to coral reefs because of their important ecological values, their
greater susceptibility to even small environmental changes, and the difficulties
associated with effective coral reef replacement/mitigation. In particular, coral reefs are
very sensitive to even small increases in turbidity and nutrient loading. Impacts to be
considered should include those resulting from sediments from dredging or dredged
material disposal, discharges of particulates or nutrients close to the coral reefs, and
degradation or destruction of ecosystems that protect and are integral to the coral reef
system, in addition to direct damage to the corals. It is important to recognize that there
are circumstances where the impacts of the proposed activity are so significant that
even if alternatives are determined not to be available, the permit should be denied
regardless of compensatory mitigation that is proposed.10

10
USEPA Water & Wetlands, Memorandum for the Field, Subject: Special Emphasis Given to Coral Reef Protection
under the Clean Water Act, Marine Protection, Research, and Sanctuaries Act, Rivers and Harbors Act, and Federal
 Mr. Edgar Garcia
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Even a cursory review of this project must force the Corps’ to the conclusion that this project is
impermissible under the applicable federal environmental laws.

Coastal Zone Management Act (CZMA) Issues

The “Major Coastal Zone Management Permit No. CZT-2-12(L&W)” (CZM Permit) (attached hereto as
Exhibit E), signed by Coral World General Manager Gertrude Prior in May 2013 and approved by the last
signatory in October 2013, very clearly stated “[a]ll applicable Territorial and Federal permits or other
necessary approvals must be obtained and copies submitted to the Division of CZM prior to
commencement of any construction activities.”11 The CZM Permit also states “if the development
covered under this permit requires separate and distinct approval from the United States Government
or the Government of the Virgin Islands or any agency, department, commission or bureau thereof, then
no development or occupancy is allowed under this permit until such permits or approvals have been
obtained.”12

Yet, in blatant violation of the CZM permit, Coral World began land clearing and excavation activities in
February 2014.13 The CZM Permit requires revocation of the permit in the event that the permittee fails
to comply with all covenants, agreements, terms, and special conditions agreed to by the permittee. 14
Instead of a revocation, in July, the CZM Board rewarded Coral World’s malfeasance, granting its request
for a modification of the CZM permit to allow Coral World to start construction before all other permits
were in place.15

This decision to initiate land clearing activities has implications beyond the CZM permit. For example,
the joint FWS/NMFS ESA regulations at 50 C.F.R. § 402.09, which address the irreversible or irretrievable
commitment of resources, state that:

Project Authorities, available at http://water.epa.gov/lawsregs/guidance/wetlands/coral.cfm (last visited Sept. 12,

2014).
11
See CZM Permit at section VI – Special Condition 3.
12
Id. at section V paragraph (o) Other Approval.
13
See March 31, 2014 AWI letter to Mr. Austin M. Monsanto, Chairman, St. Thomas Committee of the Virgin
Islands CZM Commission, the Honorable John P. de Jongh, Jr., Governor of the Virgin Islands, and the Honorable
Shawn Michael Malone, President, 30th Legislature of the Virgin Islands (attached hereto as Exhibit C); see also
Aldeth, Lewin, “CZM allows Coral World to begin construction on dolphinarium before Army Corps OKs permit,”
VIRGIN ISLANDS DAILY NEWS (July 11, 2014), http://virginislandsdailynews.com/news/czm-allows-coral-world-to-begin-
construction-on-dolphinarium-before-army-corps-oks-permit-1.1717650#.U8PZQjIR-dE.email.
14
Supra n.11 at section V paragraph (n).
15
See “CZM allows Coral World to begin construction on dolphinarium before Army Corps OKs permit,” “CZM
allows Coral World to begin construction on dolphinarium before Army Corps OKs permit,” Id.
 Mr. Edgar Garcia
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After initiation or reinitiation of consultation required under section 7(a)(2) of the Act,
the Federal agency and any applicant shall make no 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
alternatives which would avoid violating section 7(a)(2). This prohibition is in force
during the consultation process and continues until the requirements of section 7(a)(2)
are satisfied.

It would thus be wholly inadvisable and impermissible for the Corps or Coral World to use these land
clearing and excavation activities, and any subsequent construction that might have occurred since, as a
basis for ruling out or not considering the alternatives required for consideration under the National
Environmental Policy Act (NEPA) and the CWA Section 404(b)(1) Guidelines discussed in our November
2013 comments.

Further, as noted in an EPA memorandum on the Special Emphasis Given to Coral Reef Protection under
the Clean Water Act, Marine Protection, Research, and Sanctuaries Act, Rivers and Harbors Act, and
Federal Project Authorities:

Section 307(c)(1) of the Coastal Zone Management Act (CZMA) requires that activities a
Federal agency conducts or supports that affect the coastal zone be consistent with the
enforceable policies of the Federally-approved State coastal management plan to the
maximum extent practicable. As a general matter, State coastal management plans for
areas that include coral reefs, include specific provisions to ensure that these valuable
ecosystems are not harmed. Consistent with the provisions of Section 307(c)(3) of the
CZMA, the Corps will not issue any permits or authorizations under CWA Section 404,
MPRSA Section 103, or RHA Section 10 that do not have a State CZMA consistency
determination.16

Indeed, under the CZM Program approved for the Virgin Islands in March 1979 (USVI CZM Plan),
“[d]evelopment in areas adjacent to environmentally sensitive areas, such as endangered species
habitat, significant natural areas and park and recreation areas must be sited and designed to prevent
impacts which would significantly degrade such areas.”17 As this project has not been sited and designed
to prevent impacts to environmentally sensitive areas, including endangered species habitat, AWI

16
USEPA Water & Wetlands, Memorandum for the Field, Subject: Special Emphasis Given to Coral Reef Protection
under the Clean Water Act, Marine Protection, Research, and Sanctuaries Act, Rivers and Harbors Act, and Federal
Project Authorities, supra note 10.
17
U.S. Dep’t of Commerce, National Oceanic and Atmospheric Administration, Office of Coastal Zone
Management, The Virgin Islands Coastal Management Program and Final Environmental Impact Statement (Mar.
1979).
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asserts that Coral World’s dolphinarium project and the accompanying CZM permit are inconsistent with
the USVI CZM Plan.

National Environmental Policy Act Considerations

Even though the Corps does not necessarily have jurisdiction over the land portion of this project, the
Corps is nonetheless legally required to consider the land portion of the project under NEPA, as those
activities occurring on the land-side portion of the project area clearly qualify as indirect and/or
cumulative impacts of the proposed action. Consequently, the Corps cannot ignore the blatant CZM
violations that have occurred. Indeed, considering that the illegal land clearing and excavation that did
occur could have resulted in (and could still be causing) adverse impact to the aquatic environment,
including to corals and their habitat, it must consider these impacts during its review.

Furthermore, despite the existing Coral World location, the Corps is required under both the CWA 404
Guidelines and NEPA to consider reasonable project alternatives. By law, this must require a no-action
alternative but could also include consideration of other options such as placing the dolphin exhibit in an
alternate location that would reduce the environmental impact, altering the size of the dolphin exhibit,
reducing the number of dolphins permitted, or an alternative that would promote the observation of
wild dolphins in their natural habitat. While AWI may not support these alternatives, these are
“reasonable” as required by NEPA and therefore could be considered.

AWI would like to take this opportunity to reiterate its previously stated position that the environmental
impact of this facility would be significant and requires the thorough analysis that an environmental
impact statement (EIS) under NEPA would provide. Indeed, based on a preliminary review of the ten
significance factors that all agencies are supposed to consider when determining the proper level of
environmental review, this proposal meets or exceeds eight of those factors. 18

For example, the proposed nearshore dolphin exhibit enclosure would entail “impacts that may be both
beneficial and adverse;”19 may affect “public health or safety,”20 given potential for transmission of
disease from dolphins to humans, harm to humans interacting with dolphins, and disease concerns for
humans given low water quality in Water Bay; will impact coral and their habitat, which represent
“unique characteristics of the geographic area,” 21 will result in impacts that are “highly controversial”22
both among the public and scientists; and the possible effects of the project are “highly uncertain or

18
See 40 CFR §1508.27(b)(1-10).
19
Id. at (b)(1).
20
Id. at (b)(2).
21
Id. at (b)(3).
22
Id. at (b)(4).
 Mr. Edgar Garcia
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involve unique or unknown risks.”23 In addition, since approval of this permit could trigger the
submission of similar requests, the proposal has the potential to set “a precedent for future actions with
significant effects or represents a decision in principle about a future consideration”24 and/or may be
“related to other actions with individually insignificant but cumulatively significant impacts.”25 Finally, as
Coral World itself concedes, the proposed project will “adversely affect an endangered or threatened
species of its habitat that has been determined to be critical under the Endangered Species Act” 26 since,
if no such adverse impacts were anticipated, there would be no need to relocate any coral as is
proposed.

At a minimum, the Corps should provide the public with an opportunity to review and comment on a
draft EA before a decision is made to proceed with an EIS or to issue a Finding of No Significant Impact.27
Indeed, such an opportunity for the public to review and comment on the draft EA is required under
NEPA, which emphasizes the need for, and importance of, public participation in the decision-making
process.

Regulations implementing NEPA specify that “agencies shall . . . make diligent efforts to involve the
public in preparing and implementing their NEPA procedures,”28 and “federal agencies shall to the fullest
extent possible . . . encourage and facilitate public involvement in decisions which affect the quality of
the human environment.”29 Consistent with these objectives, NEPA requires “agencies” to “solicit
appropriate information from the public,” 30 by “providing public notice of NEPA-related hearings, public
meetings, and the availability of environmental documents so as to inform those persons and agencies
who may be interested or affected.”31 For projects where only local impacts are anticipated, the agency
must provide “notice to potentially interested community organizations,” 32 while for projects that may
have effects of national concern, the agency shall provide notice of the availability of the environmental
document through publication in the Federal Register along with notice “by mail to national
organizations reasonably expected to be interested in the matter.”33 More specifically, when preparing

23
See 40 CFR §1508.27(b)(5).
24
Id. at (b)(6).
25
Id. at (b)(7).
26
Id. at (b)(9).
27
See 42 U.S.C. 4331(a); 40 CFR §§ 1500.1(b), 1500.2, 1506.6, 1501.4(b).
28
See 40 C.F.R. §1506.6(a).
29
See 40 C.F.R. §1500.2(d).
30
See 40 CFR §1506.6(d).
31
Id. at 6(b).
32
Id. at 6(b)(3)(vi).
33
Id. at 6(b)(2).
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EAs, agencies “shall involve environmental agencies, applicants, and the public, to the extent practicable
…”34

In interpreting these regulations, federal courts have consistently ruled in favor of public participation in
preparing EAs and have determined that agencies preparing EAs must, at a minimum, solicit and allow
meaningful public involvement in an EA. For example, in Sierra Nevada Forest Prot. Campaign v.
Weingardt, 376 F. Supp. 2d 984, 991 (E.D. Cal. 2005), the court held that the Council on Environmental
Quality’s NEPA implementing regulations “require that the public be given as much environmental as is
practicable, prior to completion of the EA, so that the public has a sufficient basis to address those
subject areas that the agency must consider in preparing the EA … [and] so that a member of the public
can weigh in on the significant decisions that the agency will make in preparing the EA.” In Citizens for
Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 970 (9th Cir. 2003), the court held that “It is evident,
therefore, that a complete failure to involve or even inform the public about an agency’s preparation of
an EA and a FONSI, as was the case here, violates these regulations.

This wholesale neglect of the regulatory mandate to include the public in the decision-making process
represents a procedural injury. Moreover, it undermines the very purpose of NEPA . . . .” Other
examples of court rulings that EAs must be subject to public notice and comment include: Anderson v.
Evans, 371 F.3d 475, 487 (9th Cir. 2004) (holding that “the public must be given an opportunity to
comment on draft EAs”); W. Watersheds Project v. Bennett, 392 F. Supp. 2d 1217 (D. Idaho 2005)
(indicating that, “because the [CEQ] regulations must mean something . . . an agency’s failure to obtain
any public input on a draft EA violates these regulations”); and Fund for Animals v. Mainella, 283 F.
Supp. 2d 418, 434 (D. Mass. 2003) (holding that the agency violated NEPA because it “has never issued a
public EA or a FONSI as it is required to do under the NEPA regulations, [n]or has it involved the public
by permitting comments on a draft EA”).

The CEQ itself has also provided guidance on this issue explaining that EAs “must be available to the
public” since the objective of public participation in an EA process “is to notify all interested or affected
parties…” and that, hence, a repeated failure to involve the interested or affected public in the NEPA
decision-making process “would be interpreted as a violation of the regulations.”35

Should the Corps provide an opportunity for the public to review the draft EA then, after such review, if
the Corps opts not to prepare an EIS, it must explain how and why it has determined that environmental
concerns raised herein or by other members of the public are not significant.36 Further, if the Corps
chooses to prepare only an EA, that EA will “serve[] as the decision-making document to assess the

34
See 40 CFR §1501.4.
35
See NEPA’s Forty Most Asked Questions, 46 Fed. Reg. 18026, 18037 (Mar. 16, 1981).
36
See, e.g., The Steamboaters v. Federal Energy Regulatory Comm’n, 759 F.2d 1382, 1393 (9th Cir. 1985).
 Mr. Edgar Garcia
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environmental costs” of a proposed action and is the “functional equivalent of an EIS” and therefore
must be subject to the same 45-day comment period as an EIS.37

Executive Order 13089 and Related Guidance

AWI would like to remind the Corps of Executive Order 13089 (E.O. 13089) and related EPA guidance.
E.O. 13089 on Coral Reef Protection:

[R]ecognizes the significant ecological, social, and economic values provided by the
Nation's coral reefs and the critical need to ensure that Federal agencies are
implementing their authorities to protect these valuable ecosystems. E.O. 13089 directs
Federal agencies, including the … Corps, whose actions may affect U.S. coral reef
ecosystems, to: identify their actions that may affect U.S. coral reef ecosystems; utilize
their programs and authorities to protect and enhance the conditions of such
ecosystems; and… ensure that any actions they authorize, fund, or carry out will not
degrade the conditions of such ecosystems.38

Mitigation Plans

The Environmental Assessment Report refers to a coral and seagrass relocation plan, which is
identified as Appendix C to the report. Though AWI does not have a copy of this plan, it
understands from other sources that Coral World proposes to mitigate the impact of the project
on protected coral species by relocating some to areas outside the project footprint. Specifically,
Coral World proposes to “transplant” approximately 250 corals, including 75 individual lobed
star corals (Orbicella annularis).39 The species-specific identity of the other 175 corals to be
relocated or transplanted is not disclosed. Coral World claims that Bioimpact, Inc., the company
that would be responsible for transplanting the coral, has a 90 percent success rate. 40 If this rate
refers to the long term success of relocated coral, this rate is astounding considering that
Garrison and Ward (2012), in their 12-year study of the success of transplanted coral conducted
in nearby St. John, found that only 5 percent of all transplanted coral survived, including only 3

37
Save Our Ecosystems v. Clark, 747 F.2d 1240, 1247 (9th Cir. 1983).
38
USEPA Water & Wetlands, Memorandum for the Field, Subject: Special Emphasis Given to Coral Reef Protection
under the Clean Water Act, Marine Protection, Research, and Sanctuaries Act, Rivers and Harbors Act, and Federal
Project Authorities, supra note 10; see also Executive Order (E.O.) 13089, 63 Fed. Reg. 32,701-32,703 (June 11,
1998).
39
See Environmental Assessment Report at 115.
40
See January 31, 2013 letter from Coral World to Jean-Pierre Oriol, Director of the Coastal Zone Management
Division within the Department of Planning and Natural Resources, USVI at page 4.
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percent of transplanted elkhorn coral, 0 percent of staghorn coral, and 3 percent of finger
coral.41

If the success rate is similar to that found by Garrison and Ward, the relocation of corals would
hardly represent sufficient mitigation for the impacts of the project. Furthermore, merely
relocating coral does not constitute appropriate mitigation considering the long-term impact of
the dolphin exhibit’s impact on coral and coral habitat outside the project footprint. Actual
mitigation would include actions that would both compensate for the coral impacted as a
consequence of project construction and operations but that would also protect additional coral
habitat so that the net impact of the project is positive, not negative, to coral.

Marine Mammal Protection Act

In addition to consulting with NMFS in regard to the potential impact of the proposed project on
ESA-listed species, the Corps should also be engaging with NMFS in regard to its process for
permitting the import/transport of dolphins to St. Thomas. In its January 31, 2013 letter to Jean-
Pierre Oriol, the Director of the Coastal Zone Management Division of the Department of
Planning and Natural Resources in the USVI, Coral World stated that it will be obtaining a permit
from NMFS to import the dolphins to St. Thomas. Furthermore, Coral World reported that once
it obtains the approvals required at the local level, it would move forward with its NMFS permit
application at which time the source of its dolphin will be a matter of public record.

Since Coral World has received the CZM permit, it is unclear if it is awaiting receipt of the Corps
permits before initiating the permitting process with NMFS. Regardless, it would be more
sensible to engage in the NMFS permitting process before the Corps continues its review since,
should NMFS not permit the import/transport of dolphins to St. Thomas, there would be no
reason for the Corps to expend any additional time or resources on the Sections 404 and 10
permit reviews. Consequently, AWI encourages the Corps to revisit this MMPA permitting issue
with NMFS to determine whether its process should occur prior to the continuation of the Corps
permitting process.

Conclusion

In summary, we believe that Coral World’s proposal for this dolphinarium exhibit enclosure project in
Water Bay is inconsistent with the ESA, due to the presence of listed corals and sea turtles, and the

41
Garrison, V.H., and G. Ward. 2012. Transplantation of storm-generated coral fragments to enhance
Caribbean coral reefs: A successful method but not a solution. Rev. Biol. Trop. (Int. J. Trop. Biol. ISSN-0034-7744)
Vol. 60 (Suppl. 1): 59-70 (available at: http://coastal.er.usgs.gov/coral-transplant/transplantation-storm-
generated-coral.pdf).
 Mr. Edgar Garcia
SAJ-1976-89037 (SP-EWG)
September 30, 2014
Page 13

CZMA, due to the impact this project will have on water flow and effluent within and surrounding the
project footprint. The Corps is therefore obligated to deny this permit request. Thank you for
considering our comments on this important matter.

Respectfully,

Naomi A. Rose, Ph.D.

Marine Mammal Scientist

Georgia V. Hancock, Esq.

General Counsel

cc: Ms. Lisamarie Carruba, Natural Resource Specialist, Endangered Species Branch,
NMFS/SER/SERO/PRD/ESB