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Riverkeeper Moving Challenge of St. Johns Deepening to Federal Court

Posted on August 1, 2016

By Sebastian Kitchen,

The St. Johns Riverkeeper withdrew its challenge to the state permit to deepen the river, arguing that process was incapable of protecting the river, and is moving its fight to federal court.

The non-profit filed a notice Tuesday to withdraw, or voluntarily dismiss, its legal challenge to the Environmental Resource Permit by the U.S. Army Corps of Engineers for the proposed dredging of the river. The Riverkeeper filed a petition in April seeking an administrative hearing to challenge the permit.

“The responses from the Corps and the judge have made it abundantly clear that the state permit would not be enforceable, since the Corps would be immune from state laws,” St. Johns Riverkeeper Lisa Rinaman said in a statement. “As a result, we will be moving our challenge to federal court to ensure that we have a fighting chance of protecting our river from the damage that will occur from the deep dredge.”

The Army Corps welcomes the dismissal of the challenge, but disagrees with the statements about the state’s ability to regulate, according to a Thursday statement.

“We intend to comply with the conditions of the Environmental Resource Permit (ERP), which helps protect an important natural and economic asset – the St. Johns River,” according to the statement. “This well-established state process, in place for over 30 years, also meets our federal requirements … As a result, dozens of permits and permit modifications are issued from the State to the Corps each year. We incorporate applicable permit conditions into our project specifications to ensure that the contractor, likewise, complies with these conditions.”

The Army Corps would oversee the deepening of 13 miles of the river, from 40 to 47 feet, to allow larger ships with more cargo to utilize the Jacksonville port. The Jacksonville Port Authority, which included almost $47 million in its budget for next year to begin the project, and local officials believe the $684 million project is crucial for the port to remain viable and compete.

The Riverkeeper has expressed repeated concerns about the environmental damage that will accompany the expensive project.

The U.S. Army Corps of Engineers contends the environmental effects, according to multiple scientific studies and extensive modeling, would be minimal and that the plan includes sufficient mitigation to offset any damage. Port authority members have said they are comfortable with the modeling and mitigation.

On Wednesday, the Riverkeeper filed a motion citing federal law, seeking to determine the Army Corps of Engineers is not qualified to obtain an Environmental Resource Permit.

“District engineers should not seek state permits or licenses unless authorized to do so by a clear, explicit, and unambiguous Congressional waiver of Federal sovereign immunity, giving the state authority to impose that requirement on Federal activities,” according to the federal law cited by the Riverkeeper.

The Army Corps has refused to waive its sovereign immunity and would not be accountable for the permit conditions and the Florida Department of Environmental Protection could not enforce any violations of the permit, according to the Riverkeeper.

“Although the Corps has refused to take responsibility for the devastating impacts that occurred to the coral reefs in Miami from dredging, we are determined to hold them accountable for their actions in Jacksonville,” Rinaman said. “As a result we will continue our legal fight to ensure that the St. Johns is adequately protected and the local community is not left holding the bag for damages that occur to our river from the dredging.”

The Corps also disputes the comments about the Miami project, stating some reports have been incorrect and exaggerated.

“The effects of dredging the federal channel in no way threatened the viability of the reef tract, coral habitat or ESA-listed threatened corals,” according to the Corps statement.


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