CORALations NWP-13 SAJ-2014-00784 F Amended With More Sign Ons

P. O.
Box 750
Isla de Culebra, PR 00775
(o) 787-556-6234
email:info@coralations.org
September 14, 2015
TO:
Coln. Jason Kirk
District Engineer
Jacksonville District
US Amy Corps of Engineers
701 San Marcos Blvd
Jacksonville, Florida 32207
c/o Laura Turner:
Laura.Turner@usace.army.mil
Ms. Judith Enck

Regional Administrator
Region II,
US Environmental Protection Agency
290 Broadway,
New York, NY 10007-1866
enck.judith@epa.gov
c: tere.rodriguez@epa.gov
Regional Director
United States Fish and Wildlife Service
Region 4 - South East
1875 Entry Blvd.
Suite 400, Atlanta GA 30345
cynthia_dohner@fws.gov,
c: laura_mallof@fws.gov
Roy Crabtree
Regional Administrator
NOAA Fisheries Service
SE Regional Office
263 13th Ave South
St. Petersburg FL 33701
roy.crabtree@noaa.gov
c: Lisamarie.Carrubba@noaa.gov
!Cynthia Dohner
Mr. Reid Nelson

Director
Office of Federal Agency Programs
Advisory Council on Historic Preservation
401 E Street, NW,
Suite 308
Washington DC 20001-2637
rnelson@achp.gov,
c: achp@achp.gov
! Hon. Carmen R. Guerrero Prez
Secretaria, and Ernesto Diaz, CZMP

El Departamento de Recursos Naturales
y Ambientales
P.O. BOX 366147, Puerta de Tierra Station
[Carr 8838 Sector El Cinco, Piso 9]
San Juan PR 00906-6600
carmenguerrero@gmail.com
c: ediaz.czm@gmail.com
!
!
!Re: 1) Violations of Nation Wide Permit (NWP)-13 # SAJ-2014-00784 (NW-CGR) issued to the
Puerto Rico Highway and Transportation Authority (PRHTA), including a project moving in
excess as to what is needed, 2) abuse of discretion on the part of the US Army Corps of
Engineers (Corps) in issuing this NWP, and 3) notification to the Corps and other jurisdictional
authorities that this landslide repair project is moving as a part of larger common plan of
development, the Paseo Lineal project, Puerta de Tierra, Old San Juan, Puerto Rico
!
!
!
NWP-13 SAJ-2014-00784 (NW-CGR) and Paseo Lineal, Puerta de Tierra, Puerto Rico
!SUMMARY
! CORALations is an award winning, non-profit, non-governmental organization, founded in
Puerto Rico in 1995, and dedicated to the protection and restoration of Caribbean coral reefs.
CORALations, in alliance with the affected parties signed below, is filing this complaint to agencies
with federal jurisdictional authority regarding violations associated with the above referenced Nation
Wide Permit (NWP-13) the verification of which was issued by the U.S. Army Corps of Engineers
Antilles Branch to the Puerto Rico Highway and Transportation Authority (PRHTA), on September
18, 2014 (74) for a landslide repair located on the Atlantic coast of Puerto Rico on Bajamar Beach,
Puerta de Tierra, San Juan. This complaint and analysis documents three major problems: 1)
violations of the permit issued, including a project moving in excess as to what was needed, 2) the
Antilles branch abused its discretion in issuing the permit, and, 3) the project permitted intersects and
is moving as part of a larger common plan of development, the Paseo Lineal, Puerta de Tierra Project,
Old San Juan. (52)
Construction in this archeologically and ecologically sensitive area now involves 0.75 miles
of the people's dominion of the shore, the maritime terrestrial zone (MTZ) of Puerta de Tierras
Atlantic coast. (76) There are two projects, moving through two different permit venues. The Paseo
Lineal project, which is a bike and walking trail with cement terracing down the fragile cliff face to
the shore proposed to accommodate businesses concessions, and a landslide repair project, which
obtained the above referenced fast track NWP permit from the Corps of Engineers (Corps) to fill
coastal waters in order to repair a landslide.
This coastline is internationally renowned for its historic ruins. The recent construction
activities have callously unearthed with heavy machinery pre-Columbian artifacts as well as a
recently discovered labyrinth of trenches that protected the soldiers moving between the Second and
Third Lines of Defense of the Old City during the late 1700s. Construction has impacted ocean
waters listed as Critical Habitat (CH) for endangered corals found less than 50m offshore. (22,11)
This offshore reef has some of the healthiest elkhorn coral (Acropora palmata) left along the North
shore of Puerto Rico, and this reef is likely critical for providing a source of larval corals, fish and
reef creatures to replenish reefs connected by currents as far north as Florida via the Gulf Stream (64).
These waters are also frequented by the endangered West Indian manatees, three species of
endangered sea turtles, SCUBA diving clubs and businesses, surfers, paddle boarders and recreational
fishermen.
The fast track NWP issued by the Corps for the landslide repair should have involved a
simple analysis, repair and reforestation to fix a landslide caused by land-based storm water runoff. It
has evolved into an excessive and permanent fix that involves breakwaters and geo textiles typically
used to address shoreline erosion caused by scouring from storm waves. The excessive fix
implemented has further destabilized the landslide and has been causing egregious impacts to coastal
water quality. A one paragraph description in the permit request serves as a plan for the construction
of drill shafts and a retaining wall, which appears consistent with terracing under construction just to
the west of this site. No studies were found in the Corps file that diagnose the cause of the landslide,
nor were there any oceanographic, geologic, or archeological studies that would be needed not only to
analyze the least environmentally risky and most cost effective repair, but studies that would be
needed to insure the repair implemented does not impact protected species and historic artifacts of
particular concern at the site.
These construction projects have managed to bypass meaningful public participation.

The NWP-13 issued by the Corps assumes public participation throughout its permitting process
specifically where endangered species and historic artifacts are of particular concern. This includes at
the State Water Quality Certification analysis for fill, State Coastal Zone Consistency, and the States
environmental compliance processes. The Advisory Council for Historic Preservation recognizes
that A vigilant public helps ensure that federal agencies comply fully with section 106 of the
National Historic Preservation Act of 1966 (NHPA).(23)
What we have found, however, is that in practice these certifications seen as safe guards
in this fast-track permitting process, have themselves been fast-tracked, with the common
denominator being the elimination of meaningful public participation.
The sole environmental document associated with the landslide project was a fast track
Categorical Exclusion issued to the Department of Transportation and Public Works (DTOP as its
known by its Spanish acronym) of Puerto Rico in 2011, by the Permits Managing Office of Puerto
Rico (OGPe as it is known by its Spanish acronym) 2011-DEC-01585. At that time OGPe issued the
fast track Categorical Exclusion to the to cover all DTOP road repairs throughout all municipalities
of Puerto Rico. (5)
The Puerto Rico Coral Law, PR- 147, 1999 requires that an Environmental Impact Study (EIS
or DIA as it is known by its Spanish acronym) be prepared, and meaningful public participation
enjoyed for all projects that pose a threat to Puerto Ricos valuable coral reefs. Today, due to
dramatic restructuring of Puerto Ricos planning and permitting process in 2009 (Puerto Rico Law
161), the agency venue for this law to be implemented through the Puerto Rico Environmental
Quality Board, no longer exists, demonstrating a violation to Puerto Ricos Coastal Zone
Management Plan which references this law as an example of enforceable policy protecting Puerto
Ricos coastal zone.
The file at the Corps also lists the number, SHPO-07-09-12, but fails to include the document
for a project endorsement issued by the State Historic Preservation Office (SHPO) which was dated
December 10, 2012, 2 years prior to this application being discussed or submitted to the Corps. (26)
The landslide repair project referenced above uses what are typically considered temporary
scouring abatement measures, and indeed, what the Corps file shows were originally discussed as
temporary measures and made them permanent. Aerial photos show that the terracing photographed
at this landslide project is similar to the construction underway to the west. (39,40) There was no
visible change in the project schematics from the time when the Corps and PRHTA were discussing
this fill as temporary to when it was ultimately requested and verified by the Corps as permanent.
The quantities requested by PRHTA to the Corps, for both area and volume of fill, were different
from what the Corps actually permitted. The actual fill in terms of both area and volume that the
contractors deployed, exceeded both what they requested and what the Corps permitted.
The project manager, Axel Carrasquillo, informed us in March 2015, that the U.S.
Environmental Protection Agency (EPA) contacted him in response to citizen complaints regarding
impacts to coastal waters from this project, and they were working with EPA to implement a
Stormwater Pollution Prevention Plan (SWPPP) at the site. Ironically, the contractors used heavy
equipment to move the mud that had eroded and accumulated at the base of the landslide, directly into
these CH listed coastal waters. (41) The contamination of coastal waters from the mud eroding from
this landslide was exactly what this elaborate project sought to prevent.
To date, neither PRHTA nor their contractors, the Del Valle Group S.P., are listed in the
Environmental Protection Agencys (EPA) database as having a National Pollution Discharge
Elimination System (NPDES) permit for the landslide repair project. (36) However, both Omega
Engineering Corp., and Authority for the Infrastructure Financing of the Commonwealth (AFI a it is
known by its Spanish acronym) working on the Paseo Lineal, Puerta de Tierra, have two almost
identical NPDES Construction General Permits on file with EPA that includes the landslide area.
When applying to the EPA for these NPDES permits, both Omega and AFI provided false information
to the regulators regarding the presence of endangered species, endangered species CH and historic
artifacts. (35).
The project has directly destroyed 60m of beach, and impacts the enjoyment of the entire
beach area and cliffside view. A listed coral has been documented infected by a disease associated
with runoff, with the obvious source being the unstabilized worksite (21,22,38)
An historic wall associated with the Second Line of Defense of the Old City was damaged
after the breakwater was installed, most likely by the alteration of the flow of surface waters caused
by the uncritical installation of the breakwater. (43,47) The aesthetic enjoyment of the view of the
crystal clear waters of the shoreline tidal pools of Playa Bajamar, next to the beautiful historic wall
has been destroyed. (3)
Cumulative impacts from the ongoing terracing associated with the larger common plan, the
Paseo Lineal, Puerta de Tierra project, now threatens the stability of the entire coastal cliff face of this
ecologically and historically valuable shoreline. The failure from the start of project proponents to
properly diagnose and manage storm water runoff at this site is now resulting in chronic impacts to
coastal waters from lethal sediment plumes engulfing shoreline corals with every rain. Despite the
record drought, photographs have captured plumes impacting these coastal waters, the latest of which
was seen on September 5th, 2015. (42,57,69)
It should be noted that the fill approved by the fast track Corps permit is also the area of the
Paseo Lineal, Puerta de Tierra project that requires the direct fill of CH listed waters in order to
terrace. It is not likely the larger common plan would have been able to obtain a permit for filling
these waters without meaningful public participation or stricter federal agency oversight especially
given the linear project crosses multiple historic sites.
AFI continues to employ contractors recently issued arrest orders by the special prosecutor
for organized crimes division of Panama for crimes associated with money laundering in that country
(32).
We are providing this analysis to jurisdictional authorities requesting that agencies

suspend the NWP and stop the larger common plan of development, the Paseo Lineal, Puerta de
Tierra, in order to prevent further harm to endangered species and cultural resources, while a
complete investigation is conducted.!
!
!
CHRONOLOGY
In February of 2015, CORALations was contacted by Guardamar Caribe, a nongovernmental, non-profit, environmental organization dedicated to the protection of the health and
integrity of coasts, the surrounding sea and the waters that flow into it. Guardamar requested the
assistance of CORALations to make a statement regarding the sustainability of coastal construction
practices in a town meeting on the evening of the February 19, 2015 at the Municipal Assembly of
San Juan. The meeting was being held in response to public outcry regarding construction work
moving along this ecologically and archeologically sensitive coastline, which at no time had enjoyed
meaningful public participation associated with a legitimate planning process.
The site is located directly across from the El Hamburger restaurant in Puerta de Tierra, Old
San Juan, and impacts the Bajamar beach (east of La Ocho surfing area). The project intersects and
is moving as part of the larger Paseo Lineal project, impacting 0.75 miles (76) of coastal area
delineated by the Department of Natural and Environmental Resources (DRNA) as being located in
the Maritime Terrestrial Zone of Puerto Ricos coastal zone. (75,76)
!
!
HABITAT CHARACTERIZATION
Dr. Sonia Villaverde provided us with a preliminary habitat characterization study of the sites
offshore waters conducted by Dr. Hernandez Delgado and Ivangs Rivera, on February 16, 2015, and
in association with the Sociedad Ambiente Marino (SAM) and the University of Puerto Ricos Center
for Applied Tropical Ecology and Conservation (UPR-CATEC) entitled: Preliminary Determination
of Acroporid Coral Designated Critical Habitats Across Puerta de Tierra Urban Coral Reefs, San
Juan, Puerto Rico.(22) Dr. Sonia VillaVerde forwarded this study, produced at no cost to the
agencies, to the National Marine Fisherys Service (NMFS), division of the National Oceanic and
Atmospheric Administration (NOAA)(15) the U.S. Army Corps of Engineers (Corps)(13), the Puerto
Rico Department of Natural and Environmental Resources (DRNA)(14), in March of 2015. The
study indicates that the brain coral, (Pseudodiploria strigosa) is the dominant reef building coral
found in the area. Elkhorn corals (Acropora palmata), designated as threatened in 2006 under the
U.S. Endangered Species Act (ESA) (71 CFR 26852), were characterized as common in the area.
In 2008, these coastal waters were designated as CH for the acroporid corals (50 CFR, parts 223 and
226.) A disease photographed and spreading from the distal tip of a listed elkhorn coral (A. palmata),
is associated with impacts from urban runoffs. The patchy necrosis documented moves fairly rapidly
and implied a recent infection 7-10 days earlier (22, 38), likely associated with runoff from the main
source of impacts to the area, the project site.
Also found was the recently listed threatened star coral (Orbicella faveolata, formerly known
as M. faviolata,) whose final rule for listing was issued on Sept 10, 2014, prior to the issuance of this
NWP-13.
Of the multiple colonies of Elkhorn coral (A. palmata) found in the area, the study
documents that some are located less than 50m from the project site. The existing coral biodiversity
included 26 species within the 700 linear meters of reef along the shoreline. The preliminary survey
of fish fauna also showed a total of 59 species, belonging to 37 genera and 25 families. Scientists
concluded that the surveyed reef segment constitutes very important essential fish habitat (EFH) for
multiple reef fish species, including species managed by the Commonwealth of Puerto Rico and the
National Marine Fisheries Service (NMFS). Submerged aquatic vegetation (SAV) was noted across
the adjacent benthic systems. Scientists also observed that the environmental impacts of the project
to the marine ecosystems were not addressed, referencing a massive landslide and stating that it
was significantly impacting the shoreline and adjacent coral reefs ecosystems.
!
In addition to the Critical Habitat listing of these coastal waters, Section 404 b(1), 230.44
considers all coral reefs in waters of the United States (WOTUS) as special aquatic sites, having
geographical boundaries both large and small. Guardamar informed that area surfers reported sea
turtles and West Indian manatee (Trichechus manatus) frequently seen near the La Ocho surf break
and Bajamar beach area. No project sign was observed, or permit number posted at the site.
!
!SITE VISITS AND MUNICIPAL AUDIENCE
!
!
CORALations conducted three terrestrial site visits; February 19, and 22 of 2015, and
September 5, 2015. At these site visits, observations were recorded and photographs were taken and
posted to online photo albums accessible to view or download with visible extended file information
and geo referencing. (67, 68, 69) The project had cleared all the vegetation from the cliff top area,
approximately 111m, parallel with the scenic road that enters the 500 year Old city of San Juan
(PR-25R, Ave Ponce de Leon, Km 1.1). In the late morning of February 19, 2015, contractors were
observed installing pre-fabricated tube-shaped temporary erosion control materials. Observed and
photographed from the top of the cliff in the afternoon of the 19th was a 63m long offshore rubble
breakwater installed on the shore side of what appeared to be a submerged eolianite platform that runs
parallel to the shoreline. The submerged breakwater installed encompassed the shallow waters to the
beach and intersected at a 90 degree angle without benefit of a buffer zone, an historic wall.(53).
The wall jetties out perpendicular to a small point on the eastern end of the beach in the area where
the 200 year old Second Line of Defense ruins are obvious. On this day it appeared the historic wall
had been damaged, (see Impacts) as a section was photographed crumbled on top of the different
colored rocks clearly associated with the breakwater and distinct from masonry associated with the
historic wall. (43)The access to the beach was an extremely steep dirt road, constructed at
approximately 35 to 40 degree slope to the shore. There was no attempt to stabilize the steep dirt
access road built for the heavy equipment moving to the beach at this time. On its upland side, the
access road was lined with improperly installed, temporary erosion control fabric. The fabric was not
trenched and there were a few inches at the bottom of the fencing observed luffing in the breeze,
where sediment laden storm water runoff could easily pass under and down to the beach. This fragile
fence placed on the upland side of the access road was responsible for retaining anywhere from a
2-15m mound of mud, as the road progressed down at a steep incline from its 15m cliff side elevation
to the shore. Rills and gullies were observed from previous rain impacts on the ocean side of the
road, where no erosion control was installed. The wall of mud upland to the road had rills, gulleys
and a few large unstable exposed washouts, compromising the stability of the entire worksite, as the
site appeared to be sliding like a glacier of mud to the shore.
!
At the beach, this denuded cliff extended for 44m along the shore. Improperly installed
erosion control materials were observed and photographed washing in the waves. At the west end of
the beach, were concrete road barriers used as a stockpile barrier to hold back the steep, 15m mound
of exposed, small grain, light brown dirt and clay, some of which appeared to be recent fill brought in
from elsewhere. Temporary erosion control fencing was installed on the ocean side of the cement
barrier on the waters edge. Observed and photographed were multiple rills and gullies on the steep
landslide area both above, below and on the road itself.
No attempt at blanket stabilization with any type of cover fabric was installed to prevent
erosion into the sea at this time.
This Google Earth image

from January of 2015,
illustrates the threat of
cumulative impacts to
these critical habitat listed
waters from construction
work moving down the
entire coastline.
Deforestation, clearing and
terrace building has been
moving devoid of proper
legal permitting or
meaningful public
participation in this
ecologically and
archeologically sensitive,
green zoned area.
!!
At the site visit on February 22, 2015, impacts from rain were visible and photographed (68)
for comparison with the photos taken on the 19th of February. Mud was pooled at the bottom of the
steep road, and alluvial plumes of the lighter colored soil were photographed sliding under the
improperly installed erosion control fencing. The steep road itself was canalizing the storm water
runoff and the runoff was greatly accelerating erosion from an already unstable worksite down to the
shore. On the beach, the improperly installed temporary erosion control fencing and pre-fabricated,
tube-shaped erosion control materials observed washing in the waves on the 19th, were again
observed washing in the waves on the 22nd.
At both site visits, sergeant majors (Abudefduf saxatilis) and juvenile damselfish
(Pomacentridae) were observed darting in the breakwater rocks inside the shallow pools, an indicator
of EFH. A study in Florida documents impacts of fill associated with dredging on similar and
important shallow hard bottom shallow reef. (28)
There were no PVC- cement filled demarcations observed that indicate the DRNA delineated
the maritime terrestrial zone for the area.
A project sign referencing the land slide repair was later noted approximately 150m to the
east of the actual worksite, at the entrance to the parking of La Ocho/Escambrn beach area.(78)
At the town meeting held on February 19, 2015, San Juan Assembly member, Hon. Yolanda
Zayas, stated for the record, and in direct response to public testimony regarding the illegality of
projects proceeding that The issue is, that it is difficult to obtain all of the necessary permits. At
that time many people from the community were outraged about not being given a chance to speak at
this hearing.
To date neither the PRHTA landslide project nor De Valle Group S.P., has a Construction
General Permit (NPDES Storm Water Discharge) on file in EPAs electronic database.(36) However,
the larger common plan for development moving under the name of Paseo Lineal, Puerta de Tierra for
works at the same site (phase III and IV moving from Escambrn to the Capital), (50) has two
permits. There were serious problems with the information submitted in the electronic Notice of
Intents (NOIs) filed for these two projects. Permit # PRR12A724, in the name of Omega
Engineering Corps responds: NO to the question, Has a previous NPDES storm water discharge
permit ever been issued for this project. Permit # PRR12A786, in AFIs name, repsonds YES to the
same question. Both eNOIs reference the same coordinates for the projects location and the same
start and end dates for the project. (35)
Both reply with a Criterion A, that there are no endangered species, or endangered species
habitat in the area of the project.
!Both AFI and Omega reply N/A to the questions:
1) Any federal listed species and/or designated habitat located in your area,
and 2) The distance between your site and the listed species or designated
critical habitat (in miles).
!Both AFI and Omega reply NO to the question:
Is your project/site located on a property of religious or cultural significance to an Indian tribe?!

Both AFI and Omega The both reply N/A to the questions: !
Are you installing any stormwater controls as described in Appendix E that require? (Appendix E,
Step 1):!
If yes, have prior surveys or evaluations conducted on the site determined historic properties do not
exist, or that prior disturbances have precluded the existence of historic properties? (Appendix E,
Step 2):

If no, have you determined that your installation of subsurface earth-disturbing stormwater controls
will have no effect on historic properties? (Appendix E, Step 1):!
If no, did the SHPO, THPO, or other tribal representative (whichever applies) respond to you within
the 15 Calendar days to indicate whether the subsurface earth disturbances caused by the
installation of the stormwater controls affect historic properties? (Appendix E, Step-4) !
If yes, describe the nature of their response:!
A reference to SHPO number was found in the Corps file for the landslide site, but no copy of a
written endorsement was found: SHPO-07-09-12, dated Dec 10, 2012. This seemed suspicious
to us because it is dated 2012. (26)

!
IMPACT TO COASTAL WATERS, MARCH 3, 2015
On March 3, 2015, witnesses documented a direct fill by contractors who had pushed very
fine particulate soil that had been accumulating on the lower beach area as a direct result of erosion at
the unstabilized worksite, directly into coastal waters located on the shore side of the rock rubble
breakwater. The fine sediment was then compressed into the sand with heavy equipment at low tide.
This re-floated like a tarp over the shallow waters when the tide returned, and fine sediment lethal to
threatened corals, listed sea turtles and detrimental to overall coastal water quality was video recorded
discharging directly into these federally protected navigable waters.(28, 41) Sedimentation from
small particle soil diffusion poses a direct threat to area marine life and the habitat in which they live
and/or depend. Studies have shown that sedimentation has been linked to diseases in sea turtles and
corals, and is known to substantially disrupt the life cycle movements of those species of listed
threatened aquatic life indigenous to the shoreline waters, as well as endangered turtles and other
species that normally migrate through the area to nest or to forage on area sea grass.

The Corps and other federal agencies engaged in this process must be concerned about coral
reefs as defined and possibly impacted by fill described in 40 CFR 230.44: (a) Coral reefs consist of
the skeletal deposit, usually of calcareous or silicaceous materials, produced by the vital activities of
anthozoan polyps or other invertebrate organisms present in growing portions of the reef. (b)
Possible loss of values: The discharge of dredged or fill material can adversely affect colonies of reef
building organisms by burying them, by re-
!leasing contaminants such as hydrocarbons into the water column, by reducing light penetration
through the water, and by increasing the level of suspended particulates. Coral organisms are
extremely sensitive to even slight reductions in light penetration or increases in suspended
particulates. These adverse effects will cause a loss of productive colonies, which in turn provide
habitat for many species of highly specialized aquatic organisms.
!
COMPLAINTS and STUDIES ISSUED TO FEDERAL and LOCAL AGENCIES
!
On March 4, 2015, Dr. Sonia Villaverde issued a complaint to the U.S. Environmental
Protection Agency (EPA) local office about egregious impact to these coastal waters. (8) This would
be her second complaint to this agency, the first having been issued to the regional office through
their electronic venue on the 1st of February, 2015. (6) Dr. Villaverde also filed a complaint to the
Corps(13), NOAA (15), and DRNA (14). NOAA, and the Corps replied in informal emails. NOAA
indicating that their plan for controlling erosion was working, (63) and the Corps requesting more
information.(62) To date, Dr. Villaverde has received no formal response from from any of the
agencies contacted.
!
FOIA and FILE REVIEW
! On March 6, 2015, CORALations filed a Freedom of Information Act (FOIA) request, for a
copy of the permit issued by the Corps. The Corps released the verification document in response to
this request.( As a result of this FOIA, CORALations was also able to visit the office of the Army
Corps twice, once to review, and the second time to scan the information from the file. At the file
review we asked Antilles Army Corps attorney, Lcdo. Noel Acevedo, if the file under review was
current and complete, and if the project was moving as an emergency. Lcdo. Acevedo confirmed the
file was complete, and said the project was not moving as an emergency. In March we visited the
project managers office, a Mr. Axel Carasquillo who explained that in response to citizen complaints,
EPA was working with him to obtain an NPDES permit, and they were working on the preparation of
a storm water pollution prevention plan (SWPPP) at the site. At this time the Project Manager stated
that EPA told him because the landslide did not constitute an acre or more of clearing, that the permit
was not needed, but it would be good to have. While we know it to be true that in order to comply
with the Clean Water Act (CWA), all construction site operators engaged in clearing, grading, and
excavating activities that disturb one acre or more, must obtain an NPDES permit for storm water
discharges (Code of Federal Regulations [CFR], Title 40, Parts 122 and 123), the requirement for an
NPDES permit may also pertain to projects that are either federally funded or federally permitted.
The NPDES files on record for the larger common plan of development for this area, the
Paseo Lineal, Puerta de Tierra, indicates that Omega construction did obtain NPDES storm water
discharge permits form EPA, but provided false information regarding the existence of endangered
species, endangered species designated CH, and failed to respond to questions about historic artifacts.
(35)
On April 20th a compliant was filed by the Alianza de Comunidades Costeras" to the San
Juan office of DRNA Vigilantes, QSJ-166-IS documenting impacts to the Bajamar coastline from the
Paseo Lineal project. (7)
On May 26, 2015, Engineer Osvaldo Romero, a coastal conservation advocate who
collaborates with the Coalicin Playa Para Todas, sent photos showing what appears to be the
recent installation of a green colored polypropylene stabilization fabric at the site.(44) The photo
shows the stabilization fabric well below the elevated ridge of large boulders on the east side of the
project. The polypropylene degrades in UV sun, even with the UV treatment (a toxic phenolic
coating), and in just a matter of weeks.(1) We were concerned about the use of this material as a
known hazard to wildlife. As the materials degrade, they shred and can end up in coastal waters
entangling corals (50, 51).
On July 12, 2015 a sediment plume was documented offshore after only 14mm of rain,
indicating the storm water runoff had not been addressed, or storm water runoff at the site was still
failing. (57)
On August 12, 2015 and September 2, 2015, aerial photos were taken of the projects moving
along the shore at Bajamar Beach, Puerto de Tierra. There are similarities in the construction
underway at the landslide project and the construction underway at the terraces. (39, 40).
On September 5th, 2015 Mr. Freddy Vlez circulated a photo of another dense turbidity
plume off the worksite during only 3.5mm of rain. (58) Dr. Villaverde and I conducted a site visit and
posted photographs online. (42 and 69 respectively) At this time, a dense sediment plume was
observed moving out perpendicular to shore, and then transporting via littoral drift to the west,
directly in the area where endangered corals had been geo-referenced, and by the benthic habitat
characterization study. (69.1, 22) The mud was sliding down a partially stabilized hill. The mat had
been removed at the top of the project to the west and areas where the mat was present, were
compromised by rips and tears exposing rills and gullies, both above and below the access road.
There was no matting material stabilizing the road under this heavy equipment, but contractors had
attempted to stabilize with small gravel. The gravel was also failing and runoff was still observed
being canalized by the steep road down to the beach. The temporary erosion control Best
Management Practices installed at the worksite were observed and photographed failing in multiple
places.(18, 69)
!
!
Since the February site visit, the smaller
breakwater had been topped by very large
boulders. In the center of the geo-textile, mud
slid down from the site and was topping the
geotextile, pouring into the sea to the east. Photo
comparison with the May photos taken by
Engineer Romero, shows the eastern side of this
big boulder fill may be sinking, allowing the
fabric to spill muddy runoff into coastal waters.
(44,69) This was spilling into CH listed coastal
waters, directly adjacent to the historic wall.
Cement was spilling down the slope from

a box used for mixing. The bucket of a white
digger onsite was coated with inches of mud. The
small mesh, uncoated (clear) polypropylene
blanket was shredded in many areas and hanging
in front of what appeared to be collapsed areas of
landslide, in some places at a full 90 degree slope.
We had concerns about the webbing which has a
high tensile strength finding its way into coastal
waters and then entangling area corals. Construction trash was photographed discarded in various
areas at the site including in the waters between the fill and the historic wall. A new crack was
observed and photographed in the historic wall that was not in the initial photos taken in February.
The steep dirt road constructed directly on top of the landslide to access the beach had not been
stabilized with any kind of matting. It had been covered with lightly compressed gravel, and was
observed rutting and canalizing sediment laden runoff to the sea. The large boulders observed in the
May photos to the east of the geo textile beach fill had now been covered with mud and were spilling
mud from the site into coastal waters.(44) Poorly managed erosion control was observed moving
towards the west along the entire .75miles of shoreline construction, and associated with the larger
common plan of development, the Paseo Lineal, Puerta de Tierra project. (76)
ANALYSIS OF the Corps FILE - Abuse of Jurisdictional Discretion

Pre Construction Notification (PCN)?
While we understand that the standard individual permit application form ENG 4345 may be
used as the PCN, if project proponents so indicate, there was no documentation in the file at the Corps
from project proponents that indicated that the Form ENG 4345 was to serve as the PCN in this case.
Further, the form ENG 4345 used by project proponents and accepted by the Corps expired in 2013.
The form further instructs applicants to copy the District Engineer (DE), however a Sept 18, 2014
MEMO found in the Corps file indicates that no other internal office of the Corps was consulted.(31)
Assuming the expired ENG 4345 form submitted is the official PCN, (which may not be
accurate based on legal requirements for such use and absent from this file), then we would still find
that proponents failed to communicate anything to the DE and/or any delegated representative,
including CH, listed species, special aquatic sites, and historic artifacts. Further, this document failed
to include all of the information required in paragraphs (b)(1) through (7) of the general conditions.
There was absolutely no detail specific to the logistics associated with implementation. 33 CFR
section 330.4 requires that the description in the official PCN should be sufficiently detailed to allow
the DE to determine that the adverse effects of the project will be minimal and to determine the need
for compensatory mitigation. The informal email discussions referenced schematics and discussed a
temporary fill, when the final permit and subsequent verification was issued for a permanent fill with
no change in schematics or plans submitted.
10
!
District Engineer Delegation?
!
Assuming the Secretary of Defense, consistent with his jurisdictional authority, decided that
the DE can delegate this authority to a local engineer in the Antilles office, and despite the fact that
there was no such document found in this file indicating that such a delegation of duties has
happened, the burden still falls on the applicant to divulge the CH listing for the special aquatic site,
presence of endangered species, as well as historic ruins eligible for listing, on this (albeit expired and
alleged) PCN form to the Corps. It also seems apparent that the law makers, in making the DE
directly aware and accountable for NWPs taking place in areas with endangered species, their CH at
this special aquatic site, and historic ruins of great public interest, that the intent was to trigger more
regional oversight as well as specific accountability for these projects.
!
EQB Water Quality Certification (WQC), before work or before issuance?
!
The Corps issued the verification on Sept 18, 2014, prior to the applicants filing a request for
a WQC with the Commonwealth of Puerto Rico. In the file, a General WQC document indicated that
the applicant, Luis E. Rodriguez, signed on the 23rd of September 2014. The law [CFR Title 33, Vol.
3, 2012-07-01 Section 330.4, (c) (1) State 401 water quality certification pursuant to section 401 of
the Clean Water Act, or waiver thereof,] states that the WQC is required prior to the issuance of an
NWP authorizing activities which may result in a discharge into waters of the United States. This is
to secure local state oversight in a potentially hazardous activity for coastal waters, and this process is
supposed to also afford the opportunity for meaningful public participation, and for which there is no
evidence of this ever having happened in this file.
!
The WQC process for the Environmental Quality Board (EQB) of Puerto Rico requires that
the project proponent pay for public notice to be placed in any local paper; however, even though this
file was reviewed months after the certification was applied for, and the certification was applied for
almost a week after the verification was issued, there was no evidence of any public notice posted in
any local newspaper, nor evidence of any receipt of payment for this notice in the Corps file. (JCA
Reg. 1306.11(B) 2010).
Meaningful Public Participation assumed through multiple processes

CFR Title 33 section 330.4 states that DEs will take appropriate measures, such as public
notices, to inform the public of which activities, waterbodies, or regions require an individual 401
water quality certification before authorization by an NWP, and also which activities, waterbodies or
regions require prospective permittees to make an individual consistency determination and seek
concurrence from the state. There was no evidence of any notice from the Corps or any other agencies
regarding evidence of notice for meaningful public participation.
The quantities of fill issued by the verification were different from those initially proposed,
and much less than what was ultimately filled. (74)
According to the ENG 4345 submitted for this project, and signed on May 4th by Luis E.
2,
Rodriguez, the proponents requested a permit to fill in an area of 213.01m or, 0.0526 acres of
navigable waters of the United States. The verification issued on September 18, 2014, states that the
review of information and drawings provided, that the proposed work would result in the fill of 0.03
acres of navigable waters.
!
Looking at the January 2007 Google image at the site and with the help of Google Earth
software, we illustrate a very basic area calculation.(20). This area of fill demarcates the outer line of
11
2
the breakwater as referenced. This admittedly conservative estimate shows 570 m or 0.14 acres
were actually filled, where 0.10 acres is the NWP-13 threshold for mitigation considerations, and
where over 0.5 acres is the threshold for coordination.
The ENG 4345 from project proponents indicate a volume of 55.83 yds
of fill will be
3.
discharged, however, the verification document based on the review indicates 53.57 yds The
discrepancy between the volume of fill applied for and the volume of fill authorized by the
verification for this NWP was not caught by any internal or external agency review.
.
Neither this discrepancy between the area applied for fill and area of fill authorized by the
verification for this NWP, nor the discrepancy between the area of fill authorized and area actually
filled was caught by any internal or external agency oversight. Similarly the volume discrepancies
between what was applied for and what was authorized as not caught by agencies.
To date, and despite this very public controversy in the local press, the Corps has apparently
failed to recognize the discrepancy between the area of fill authorized, and the actual area of fill at the
site, as it is clear that the project is today moving with an invalidated NWP.(33 CFR section 330.4.)
The Corps and other federal agencies engaged in this permitting process, failed to account for
regional variations (40 CFR Sect 230.92) when evaluating impacts from fill activities, and the district
engineers failed to account for regional characteristics of aquatic resource types, functions and
services when determining performance standards and monitoring requirements for compensatory
mitigation projects largely because the DE was not consulted, and numbers issued not reflexive across
the boards - from application to verification to the actual fill, which in reality passed thresholds.
The Corps, in issuing this permit, clearly failed to insure all engaged federal agencies
completed their roles in this permit according to federal laws, existing guidelines and recommended
protocols.
Absent from the file were copies of any communications to or from the DE, or any delegated
representative, for an area with archeological, historical and impacts to navigable waters listed as CH
for endangered corals found in the area. There was no determination/waiver from the DE or any
documented representative indicating that the discharges of dredged or fill material into special
aquatic sites (40 CFR 230.44 coral reefs) will result in minimal adverse effects to these protected
waters. There were no studies found in the file indicating baseline ecological conditions on the
project site, or delineation prepared by project proponents or the Corps. There was no no formal,
certified delineation of the maritime terrestrial zone, (the publics dominion of the shoreline) in the
Corps file, and no studies evaluating presence or absence of special aquatic bodies, endangered sea
turtles, EFH, sea grass or the listed corals and critical habitat designated waters this project impacts
found in the file. There was no documentation found in the Corps file from project proponents that
these concerns were submitted to the DE or any representative thereof at least 30 days prior to
commencing activities.
!
Jurisdictional Determination (JD)
!
The Corps dated the JD the same day as the proponents submittal for request, indicating that
no physical site visit likely took place.
The verification indicates that a total of 0.03 acres of navigable waters of the United States
would be filled however, conservative estimates calculated from Google earth imagery from January
27, 2015, and including the area encompassed by the breakwater to mid-beach, reveal that an impact
area filled that includes at least 0.19 acres of navigable waters.
This project then passes the
mitigation threshold requirement found in NWP General Condition 13, which states that if the
proposed activity will result in the loss of greater than 0.10 acre of wetlands, and a PCN is required,
12
then the prospective permittee must submit a statement describing how the mitigation requirement
will be satisfied, or explaining why the adverse effects are minimal and why compensatory mitigation
should not be required. As an alternative, the prospective permittee may submit a conceptual or
detailed mitigation plan.
A Sept 18, 2015 MEMO found in the Corps file, states in section 9.4 that there was no other
internal coordination with other Corps offices, and twice indicated that there were no waivers
required.(31) In section 10.1 the Corps answers NO in response to the bullet asking if any other
agency other than the Corps regulatory office has documented that the proposed project complies
with applicable federal laws, to include Sect 7 of the ESA, the EFH provision of the MagnusonStevens Fishery Conservation and Management Act (MSA) and/or Section 106 of the National
Historic Preservation Act (NHPA) as appropriate. For projects where species and historic artifacts of
concern the DE must write an actual letter or waiver. We assume this means the DE (or possibly as in
this case, an undocumented delegate) continue to bear the non-disgretional responsibility to write a
letter/waiver to proponents and include this in the file.
For activities that might affect federally-listed endangered or threatened species or designated
CH, the pre-construction notification must include the name(s) of the endangered or threatened
species that might be affected by the proposed work or that utilize the designated critical habitat that
might be affected by the proposed work. Nowhere in the file is any letter from the issuing engineer or
DE stating that the proposed activity may affect or will have no effect to listed species and
designated CH. Nowhere is there any statement from the issuing engineer that the project may
affect or will have no -effect to listed species and designated CH. The verification (74) indicates
that National Marine Fisheries Service (NMFS) Section 7 consultation had been completed, however
the Corps actually sent an email to NMFS withdrawing her request to NOAA for consult.(10)
Although we await a FOIA request to NOAA, we dont believe NOAA conducted any in water site
visit consistent with their protocol for Sect 7 consultation for Acroporid corals (33).
Carmen A. Morales Mateo of the Department of Transportation and Public Works, Puerto
Rico Highway and Transportation Authority (DTOP-PRHTA), states in an email to the Corps on
Tuesday March 11, 2014 at 4:55PM:
(unofficial translation)
To address this situation we are proposing or evaluating the temporary
installation of a system that involves placing a geotextile in the form of large worm
filled with sand into a trench that would hold the material that will slide during
construction of the project and allow its removal before it affects the quality of the
waters. These measures would be temporary but I don't know if any permit is
required. (9)
!At this time Ms. Morales also submitted schematics to the Corps to describe what they were
planning. Somewhere through the course of this permit process, these fills became permanent, but
the sketches describing the project submitted when she was describing the temporary plans, remain
unchanged. In other words the plans for the fill to be temporary become permanent without any
changes to the plans.
A reference to SHPO number was found in the Corps file for the landslide site, but no copy
of a written endorsement was found: SHPO-07-09-12, dated Dec 10, 2012. This SHPO reference is
dated years before the actual plans were submitted to the Corps for approval and those plans were
only submitted to the corps after discussions about what would actually be proposed at the site. Also,
SHPO does not write endorsements. (26)
A reference to a DRNA Agreement dated October 7, 2010 was also made, without any
corresponding document found in the file. This document was dated five years prior to the PCN
being submitted to the Corps. (26)
13
!
!
VIOLATIONS of the NWP-13. !
!
CONDITIONS VIOLATION NWP- 13(a)

The project is moving in direct violation of NWP-13, (a): The project is placing materials
in excess of the minimum needed for erosion protection.
The failure of the Corps to make factual determinations based on objective and verifiable data
as to the cause of the landslide, or reasonable fix options for this cause, has resulted in materials
placed in excess of the minimum needed. This has resulted in the invalidated and excessive fill which
has visibly damaged and continues to chronically impact CH listed coastal waters, caused irreparable
harm to endangered corals and damages and escalating concerns for historic ruins of particular
concern that are eligible for listing in the National Registry of Historic Places (NRHP.)(please see
Historic for more information on this.)
Photographs over time of this site show chronic damage is now occurring to the area from the
excessive repair implemented, unsupported by any studies regarding existing oceanographic
conditions, area artifacts, protected waters and endangered species. Photos found in the Corps file
although undated, show coastal waters from a small, still mostly vegetated landslide area, with
sparkling clear water quality prior to work beginning. Before photos show a smaller and more stable
landslide area than what exists at the site today, which was clearly caused by storm water runoff overmining the road and sidewalk area. The before photos show the beautiful beach and adjacent historic
wall was visible to enjoy by the general public, until this excessive project began. (3)
The sketches and information provided by the project proponents to the Corps failed to
contain sufficient detail to provide an illustrative description of the proposed logistics for the actual
fill activity (e.g., a conceptual plan including risky access road down cliff face needed for
implementation.) The denuded cliff face topped by what appeared to be more external fill and
unstabilized, steep dirt access road accommodating heavy equipment to the beach, presented a threat
to coastal waters from erosion and sedimentation that was much greater than what was observed in
the Corps file before photos of the landslide. 33 CFR section 330.4 requires that this description
in the official PCN should be sufficiently detailed to allow the DE to determine that the adverse
effects of the project will be minimal and to determine the need for compensatory mitigation.
Peer reviewed publications demonstrate that steep dirt roads even the coastal zone pose a
significant threat of erosion especially when located on extreme slopes.(37, 59,
60,61,65,66,71,72,74 )
The expired ENG 4345 states that the purpose of this project is To repair the roadway and
sidewalk that were damaged by a landslide at PR-25R, km 1.1 in the municipality of San Juan. The
actual million dollar project implemented, is an expensive and complicated fix to repair coastal
landslides that result from ocean based stressors, specifically the scouring effects from excessive
wave action to the shore as reflected in the title of the project found the Joint Application found in the
Corps file: Construction of a Drill Shaft Wall and a Scouring and Erosion Protection Structure. (26)
!
On February 9, 2015, the Secretary of the DRNA, and the Secretary of the Department of
Transportation and Public Works (DTOP as it is known by its Spanish acronym), testified to the San
Juan Municipal Assembly at a hearing held regarding the controversial Paseo Lineal project currently
underway and intersecting the same project location. The testimony revealed that based on technical
review of historic aerial photos of the landslide area, the cause of this landslide was land-based, storm
water runoff.
1. LINK:
FEB 9, 2015. http://aldia.microjuris.com/2015/02/09/legislatura-de-san-juan-sereune-hoy-para-discutir-paseo-puerta-de-tierra/
14
!
!
At 36:04 - 36:55 time marker of the above referenced video documentation, the
Secretary of the DRNA, Carmen Guerrero, and the Secretary Miguel Torres Diaz
of DTOP, both testified the damage to this area was caused by land-based storm
water runoff.
At 38:18,Secretary Guerrero goes on to stress nunca deben utilizar gaviones,
canastas de piedras en el mbito marino como medida estructural para
estabilizar taludes o reas sujetas a erosin que la corrosin compromete su
integridad en un muy corto termino and is referencing here the work moving
along the entire coastline.
At 42:05, the Secretary for DTOP states that the Autoridad de Carreteras est
invirtiendo casi $1.8 milliones de dlares en unas mejoras, but then goes on
42:20 to clarify the cause of the landslide derrumbe por motivo de una erosin
causada por descargas pluviales frente el Hamburger.
CONDITIONS VIOLATION NWP-13 (c)

The project is moving in direct violation of NWP-13 (c): The activity will not exceed an
average of one cubic yard per running foot placed along the bank below the plane of the
ordinary high water mark or the high tide line, unless the district engineer waives this
criterion by making a written determination concluding that the discharge will result in
minimal adverse effects.
Absent from the files were any notice communications with the DE, or a signed waiver for
this project which involves a bank stabilization activity that fills more than one cubic yard per
running foot along the bank below the plane of the ordinary high water mark or the high tide line, and
for which no calculation of breakwater, B fill or volume calculations for the portions of geotextile
and polymeric mattress installed below the tideline were included or evaluated. The September 18th
Memo found in the Corps file twice indicates that that no waivers were required and that no
interoffice communications took place between Corps offices. (31)
By conservative estimate for the first breakwater fill alone, with a length of approximately
200 feet by a width of approximately 15 feet, and a very conservative 1.5 feet in height below water,
there would be 4,500 cubic feet, which converts to 166.6 cubic yards of fill on 190 running feet 0.9
cubic yards of fill per running foot, for the breakwater alone. The breakwater alone, exceeds the
53.57 cubic yards authorized by the permit.
The sketches and information provided to the Corps failed to contain sufficient detail to
provide an illustrative description of the proposed logistics for the actual fill activity (e.g., a
conceptual plan) especially where the concern of fill below the high tide line is concerned and as
required by 33 CFR section 330.4.
While we understand the Paseo Lineal project has a certified delineation of the maritime
terrestrial zone (MTZ) certified by the DRNA , and which includes this area, there were no physical
markers observed on any of the site visits that would correspond to such a delineation seen at any of
the site visits. This is important not only to delimit the publics dominion of the shore, but also
critical to the implementation of this excessive fix authorized by this NWP and where project
proponents must constantly reference the physical demarcations specifically of high tide in order to
properly install their project.
!
!
!
!
!
!
15
CONDITIONS VIOLATION NWP 13(d), and NWP General Condition 18, ESA:
The project is moving in direct violation of NWP-13, (d) The activity does not involve
discharges of dredged or fill material into special aquatic sites, unless the district engineer
waives this criterion by making a written determination concluding that the discharge will
result in minimal adverse effects.
Coral reefs are one of the five special aquatic sites deserving this higher level of protection.
(Subpart E, Section 230.44) Special aquatic sites are generally characterized as "geographic areas,
large or small, possessing special ecological characteristics of productivity, habitat, wildlife
protection, or other important and easily disrupted ecological values. These areas are generally
recognized as significantly influencing or positively contributing to the general overall environmental
health or vitality of the entire ecosystem of a Region." (Section 230.3(q-1)
Absent from the files were any communications to or from the DE, including a preconstruction notification to the DE disclosing that the bank stabilization activity involved discharges
into special aquatic sites, where in this case the receiving waters are listed critical habitat for listed
corals. Therefore the NWP was issued in violation of general condition 18, which requires prior
notification specifically to the District Engineer that listed species and critical habitat would be
affected and are in the vicinity of this project. The Sept 18 2015 MEMO found in the Corps file
states in section 9.4 that there was no other internal coordination with other Corps offices, and twice
indicated that there were no waivers required. 31)
There was no delineation of special aquatic sites in or around this project site submitted by
project proponents. Whereas the permittee can request that the Corps delineate the special aquatic
sites and other waters on the project site, there were no maps or schematics found in the file that
demarcated the critical habitat listed coastal waters, and the location and or proximity of the sessile
and endangered corals. There was no current analysis or subsequent mapping to show fish and coral
larval transport in the area.
It is not clear if the wetland delineation was prepared according to the current method
required by the Corps. The Corps adopted the jurisdictional determination (JD) the same day
received, indicating that likely there was no confirmation site visit.
The Sept 18, 2014 project verification states incorrectly that the consultation required under
Section 7 of the Endangered Species Act was completed, when no NMFS section 7 evaluation took
place. The project engineer withdrew the request on Sept 16, 2014, (10) and based on the one email
communication from NOAA included in the file, no Section 7, in water site visit consistent with
NOAAs Section 7 protocol for acroporids (33) appears to have been performed.
The Corps cannot authorize any activity under a NWP which is likely to directly or indirectly
jeopardize the continued existence of a threatened or endangered species or a species proposed for
such designation, as identified under the federal ESA, or which will directly or indirectly destroy or
adversely modify the critical habitat of such species. No activity is authorized under any NWP which
may affect a listed species or critical habitat, unless Section 7 consultation addressing the effects
of the proposed activity has been completed.
There is also some confusion on the part of the Corps in emails to NOAA and in the Sept 18,
2014 memo found in the Corps file regarding the important Section 7 consultation. The memo
indicates that the information consultation was withdrawn based on NMFS Sept 15, 2015 email,
and in an email from the Corps, the Corps states they are withdrawing the
informal consultation. (31, 26)
16
Through this process, NWP 13 stresses that federal agencies must follow their own
procedures for complying with the requirements of the ESA. Federal permittees must provide the DE
with the appropriate documentation to demonstrate compliance with those requirements. It is the DEs
responsibility to review the documentation and determine whether it is sufficient to address ESA
compliance for the NWP activity, or whether additional ESA consultation is necessary.
The file and email from NMFS also failed to mention the endangered West Indian manatees
(Trichechus manatus) as seen by multiple surfers who frequent the La Ocho surf break where it
appears NMFS failed to interview area recreators, or commercial stakeholders. .The PCN is required
of any NWP-13 issued for a projects in waters accessible to manatee.
Proponents failed to include the direct and indirect adverse environmental effects the project
could cause. Project proponents failed to include the names of the federally listed and protected
species or the designated critical habitat waters that might be directly affected or is in the vicinity of
the project. All non-federal applicants are required to include in the PCN the specific name(s) of those
endangered or threatened species that might be affected by the proposed work or at least mention the
designated critical habitat affected by the proposed work.
There was no mention from the DE or the issuing engineer from the Corps included in this
file, or written in this verification that there would be no effect or no potential to cause effects on
listed species. The Sept 18th MEMO found in the Corps file states in section 9.4 that there was no
other internal coordination with other Corps offices, and twice indicated that there were no waivers
required.(31)
This steep, shoreline dirt roads was an extremely high risk construction, associated with the
logistics of implementing this excessive fix. Coastal dirt roads can alter water on the landscape
canalizing surface runoff, accelerating road erosion, and resulting in the sedimentation of coastal
resources. (61, 66) They intercept subsurface flows and disrupt natural drainage patterns. (75) The
steeper the incline of the road, the higher the erosion rates. (59,60,61) This erosion into coastal waters
can have profound impacts on adjacent coral reef marine communities. (18, 65 ,66, 70)
The permit issued by the Antilles branch makes no mention of the need for an NPDES Storm
Water Discharge Permit from the EPA, nor any mention of best management practices for dirt roads
as established by the National Resource Conservation Service (NRCS).(36) The permits sole
measure to protect against this threat is to move the installation of a breakwater left for the final stage
of the project to the first step of the project.
Dr. Carrubbas email also incorrectly concludes that much of the work poses little threat to
these CH listed waters and corals because most of the project is to take place on shore or on beach.
No coastal construction, on beach, on cliff face and especially these in-water modifications can be
undertaken with confidence without benefit of oceanographic studies and modeling. This must be
especially true where projects pose a threat of re-directing currents, causing surface ripple effects,
modification of surface flow and or poses a threat of redeposition of sands and sediment on top of
nearby sessile corals listed as endangered. Even terrestrial shoreline alterations can impact nearshore
benthic topography from the resulting wave refractions, as well as pose a direct threat of impact to
shallow corals from sand redirected and deposited on the corals. The discharge of dredged or fill
material can modify current patterns and water circulation by obstructing flow, changing the direction
or velocity of water flow, changing the direction or velocity of water flow and circulation, or
otherwise changing the dimensions of a water body. As a result, adverse changes can occur in:
Location, structure, and dynamics of aquatic communities; shoreline and substrate erosion and
deposition rates; the deposition of suspended particulates; the rate and extent of mixing of dissolved
and suspended components of the water body; and water stratification. (40 CFR 230.23): (b)
17
The only way this breakwater could in some small way contribute to minimizing area
turbidity by reducing the transport of sediment through the permeable breakwater, would be if the
breakwater served to obstruct the surface flow of the waters, reducing this velocity so that suspended
particles could settle instead of being transported out of the impact area. The obstruction of the
surface flow, is NWP-13, Conditional Exception (e): No material is of a type, or is placed in any
location, or in any manner, that will impair surface water flow into or out of any waters of the
United States.
!
ESA Sea Turtles
!
Special Condition 4b of the verification issued by the Corps includes recommendations to

contractors regarding sea turtles known to frequent the area, and instructs the permittee to monitor the
sea turtle nesting activity along the shoreline to ensure that there are no incubating nests at the project
site and immediate areas that may be impacted by the proposed project. Given the stated objective,
this means that 70 days prior to the beginning of construction a qualified individual should have
monitored the project site daily for signs of turtle nesting activity, however no such documents were
found in the Corps file reflection compliance to this condition.
Subsequent construction lighting offenses were photographed at the PRHTA work site on
04/28/2015, and today add to the cumulative impacts of Paseo Lineal and PRHTA now impacting the
entire shoreline without a Corps permit reflecting failure to implement the USFWS sea turtles and
nesting habitat conservation measures as required of special condition 5 of this permit. (27)
Condition Violations NWP -13(f) No material is placed in a manner that will be eroded
by normal or expected high flows.
Initial email communications between the Corps and PRHTA, indicated that the
geotextiles would be implemented temporarily.(9) In the ENG FORM 4345 Block 18, the reference
is made that the geotextile should be permanent. (26) No information appears in the file or
verification document regarding timeline, maintenance or removal of any of these materials. In the
final verification, it appears all installations are to be permanent. The schematics which make up the
bulk of the information provided to the Corps regarding what is planned by this project are the same
as those submitted in the initial inquiry which discussed these plans as a possible temporary fix.
The NWP-13 cannot be used to approve materials such as the geotextile sand filled container
and polymeric mattress if it is to serve as a base for other structures, like parking or the terraces being
illegally constructed along this coast by the Paseo Lineal project. This permanent fill for use as a
terrace or stairway or parking or any other such use require a separate permit under Section 10 of the
Rivers and Harbors Act of 1899, 33 U.S.C. 403.
NWP restrictions recognize that all temporary fills must consist of materials, and be placed in
a manner, that will not be eroded by expected high flows, and that all temporary fills must be
removed in their entirety and the affected areas returned to pre-construction elevations. The areas
affected by temporary fills must be re-vegetated, as appropriate. As of the September 5th, 2015 site
visit, erosion control materials were shredding and not maintained. There was no attempt at
restabilization with vegetation and indeed the photos from February and May show a more stable
worksite than what exists today. (43,66,67,68)
The ENG 4535 make reference to a borrowed or B fill, whereas the verification for this
NWP-13 makes no mention, or authorizesB-fill.(26) Upon review of the Corps file there was no
analysis or source location provided for any of the fill materials used at this site to determine if the fill
used was non-toxic and/or suitable for use to comply with Sec 404, in order to ensure that the
material will not cause or contribute to even more adverse environmental impacts.
18
There is no mention of Essential Fish Habitats (EFH) by project proponents nor the Corps
with the exception of the Sept 18, 2015 Memo, point 10.3, the Antilles representatives answered
NO for Is there essential fish habitat (EFH) in the area? but references no studies.(31) This
contradicts a study performed at the request of concerned citizens by Dr. Edwin Hernandez Delgado
and Rivera, who reports EFH at the project site, and consistent with our observations on the site visit.
(22)
In reviewing the PCN for the proposed activity, the district engineer failed to determine
whether the activity authorized by the NWP would result in more than minimal individual or
cumulative adverse environmental effects or may be contrary to the public interest.
There was
absolutely no discussion or analysis of cumulative adverse environmental effects found in the file,
where the Council on Environmental Qualitys, National Environmental Policy Act (NEPA)
regulations define cumulative effects as: the impact on the environment which results from the
incremental impact of the action when added to other past, present and reasonably foreseeable future
actions regardless of what agency (federal or non-federal) or person undertakes such other actions.
Cumulative impacts can result from individually minor but collectively significant actions taking
place over a period of time. [40 CFR 1508.7]
!Coastal Zone Management Program Compliance
The Coastal Zone Management Plan (CZMP) for Puerto Rico references the coral reef law of
1999, PR Ley 147, as an example of enforceable policy the Government has put into place to protect
coral reefs. The CZMP also assumes a consistency process will be enjoyed for each individual
project in the coastal zone. Coral law 147 clearly states that any project that can pose harm to coral
reefs must have an environmental impact study and public hearing. Given that this NWP 13 was
issued in violation of this local law, and failed to enjoy consistency evaluation, the NWP is noncompliant to the Coastal Zone Management Plan for Puerto Rico, a violation of the Federal
Magnusun-Stevens, Coastal Zone Management Act.
Section 301(c)(1) of the Coastal Zone Management Act requires the Corps to provide a
consistency determination and receive state agreement prior to the issuance, resistance, or
expansion of any activities authorized by an NWP that authorizes activities within a state with a
federally-approved CZMP when activities that would occur within, or outside, that states coastal
zone will affect land or water uses or natural resources of the states coastal zone. There was no
documentation in the file at the Corps indicating that such a document was not needed because
blanket approval had been issued for NWP-13s, for fast track approval of consistency at some earlier
time, nor could such a blanket fast track approval possibly serve as verification that this individual
project has completed a legitimate consistency review, including the required meaningful public
participation. In order for the Corps to issue this NWP, some form of consistency documentation
(regarding fast track approvals years ago or proper individual permit review) should have appeared in
this file to document prior federal consistency at the time of issuance.
There is a project directly intersecting this project that moves along the entire coastline. This
project is constructing terraces in the maritime terrestrial zone, or public domain of the people as
defined by the Maritime Terrestrial Zone.(76) A July 2015 letter from the Secretary of the DRNA
mentions that projects privatizing these areas will require a concession from DRNA.(16) However to
the communitys knowledge there has been no notice requesting meaningful public participation for
such a concession, nor no notice onsite, and certainly no notice posted at the landslide project
indicating a delineation was to be done before this work. The Paseo Lineal, Puerta de Tierra
intersects with the landslide project and agencies allegedly conducting site visits have to our
knowledge taken no actions to protect listed species from impacts from this grander project. The
Paseo Lineal also failed to enjoy a coastal zone consistency review, and the landslide project only a
rubber stamp as coastal zone consistency was previously fast tracked for all NWPs issued in Puerto
Rico.
!
!
19
!
Historical Patrimony !
!
Despite the acknowledgement in the file that the site encompassed important archeological
and historic artifacts associated with the 400 year old Second Line of Defense for the Old City, there
were no archeological studies found or referenced in the file at the Corps.
The permit was issued in violation of NWP general condition 20, which requires prior
notification to the District Engineer that the activity may have the potential to cause effects to historic
properties. There was no mention from the DE or this issuing engineer in this written verification that
there would be no affect or no potential to cause effects on historic properties, or that the
consultation required under Section 106 of the National Historic Preservation. (33 CFR 330.4(g) had
been completed consistent with the respective federal agencys protocol. The Sept 18th MEMO states
in section 9.4 that there was no other internal coordination with other Corps offices, and twice
indicated that there were no waivers required. (31)
The records at the Corps indicate that there is State Historic Preservations Office (SHPO)
letter but no endorsement was found on file.!
! We understand that the Advisory Council for Historic Preservations recognizes that
A vigilant public helps ensure that federal agencies comply fully with section 106. (22)
!
!
Absent from the file was documentation of notice for public participation. This project failed
to enjoy public participation from groups or individuals as required by Section 106 of the National
Historic Preservation Act (NHPA). CFR Title 33 section 330.4 states that the DE has the
jurisdictional responsibility to take appropriate measures, such as public notices, to inform the public
of which activities, waterbodies , or regions required and individual 401 WQC before authorization
by an NWP.
!
In section 10.1 the Sept 18th MEMO the Corps answers NO in response to the question if
any other agency besides that of the corps regulatory office has documented that the proposed project
complies with applicable federal laws, to include Section 7 of the ESA, the EFH provision of the
Magnuson-Stevens Fishery Conservation and Management Act (MSA) and/or Section 106 of the
National Historic Preservation Act (NHPA) as appropriate.(31)
For an activity that may affect a historic property potentially eligible for listing on the
National Register of Historic Places (NRHP), non-Federal applicants must state which historic
property may be affected by the proposed work or include a vicinity map indicating the location of
the historic property. While proponent included comments like 2nd Generation Wall, on maps, there
was no further elaboration or study provided in the Corps file regarding these artifacts, nor were these
artifacts protected by buffer zones conditioned in the Corps permit. Proponents failed to adequately
describe all of the historic artifacts, remnants and or ruins in the area and fail to mention that they are
eligible for listing with the NRHP.
As identified in the schematics by the project proponents PRHTA, the potentially eligible
historical wall consists of two structures in the vicinity of the project. In the Project Plan Review,
sheet 3, both structures are labeled 2nd Generation Wall. The labeled 2nd Generation Wall in the
schematics that extends out into the sea has historical construction characteristics partially covered by
new concrete work.
Archeologist Sharon Melendez stated in her Archeological Evaluation of Paseo de Puerta de
Tierra: (Fase 1a / Dic 2013 / page 57 - 2nd paragraph (30)
"Of the 2nd Line of Defense there is still the ruins of the Bastin Isabel II, also known as
the Batera de San Agustin, which is located at the intersection of the San Agustn Street
20
and the Ponce de Len Avenue (figure 42 and 43), a portion of its wall at the beach in
what used to be the US Navy Officer's Club, and another portion that has recently been
exposed after the landslide on the Muoz Rivera Avenue. The pit at San Agustn Street
was filled in the 1950s (De Hostos 1966: 125-132)." (translated from the original text
below)
"De la Segunda Lnea de Defensa quedan an las ruinas del Bastin de Isabel II, tambin
conocida como Batera de San Agustn, que se encuentra en la convergencia de la calle
San Agustn y la Ave. Ponce de Len (figuras 42 y 43), una porcin de su muralla en la
playa de lo que fue el Club de Oficiales de la Reserva de Marina de EE.UU., y otra
porcin que ha sido expuesta recientemente luego de un derrumbe en la avenida Muoz
Rivera. El foso de la calle San Agustn fue rellenado en la dcada del 1950 (De Hostos
1966: 125-132)."
Absent from the file at the Corps was a letter from the District Engineer (DE) determining
weather the wall adjacent to the project location was listed or is eligible for listing in the National
Registry of Historic Places (NRHP). In the Sept 18th MEMO in the Corps file, the Corps
acknowledges that near the project site are culturally important artifacts considered to be remains of
the Second Wall of Defense of the old city.(31) Personal communications from area archeologists
indicate that a wall inside the project area, that jetties out perpendicular to shore, is part of these
artifacts. The area known as the First Line of Defense for the old city was registered in the NRHP on
the 25th of September 1997, #97001136. All similar structures such as the walls that appear in this
vicinity should, therefore, be eligible for listing based on the same criteria for which the First Line
was issued.(24)
Most disturbing were observed impacts to the historic wall that extends out to sea and that
exhibits both historic and more recent cement modifications. (43,47)(See section on Impacts)
The Corps and agencies associated with this permit cannot allow activities that may affect
properties listed or properties eligible for listing in the NRHP. This permit is not authorized until the
DE has complied with the provisions of 33 CFR part 325, appendix C. and that (2) non-federal
permittees will notify the DE if the activity may affect historic properties which the National Park
Service has listed, determined eligible for listing, or which the prospective permittee has reason to
believe may be eligible for listing, in the NRHP. In such cases, the prospective permittee will not
begin the proposed activity until notified by the DE that the requirements of the NHPA have been
satisfied and that the activity is authorized. If a property in the permit area of the activity is
determined to be an historic property in accordance with 33 CFR part 325, appendix C, the DE will
take into account the effects on such properties in accordance with 33 CFR part 325, appendix C. In
such cases, the DE may: (i) After complying with the requirements of 33 CFR part 325, appendix C,
authorize the activity under the NWP by adding, if appropriate, activity-specific conditions; or (ii)
Prior to or concurrent with complying with the requirements of 33 CFR part 325, appendix C, he may
assert discretionary authority (see 33 CFR 330.4(e)) and instruct the prospective permittee of
procedures to seek authorization under a regional general permit or an individual permit. (See 33 CFR
330.5(d).) (3) The permittee shall immediately notify the DE if, before or during prosecution of the
work authorized, he encounters an historic property that has not been listed or determined eligible for
listing on the National Register, but which the prospective permittee has reason to believe may be
eligible for listing on the National Register.
With regard to historic artifacts, The Puerto Rico Coastal Zone Management Program - OPPPUCPR (revised august 2008) has the following policies dealing specifically with the protection and
conservation of historical and archeological sites in the jurisdiction of Puerto Rico:
a) to preserve and protect structures of historical, architectonic, and cultural value, as well as
resources of archeological value, by implementing and monitoring regulation for it (see Public
Policy 29.00) and,
21
b) to avoid the demolition, mutilation, destruction, and deterioration of natural resources,
archeological sites, and historic sites and zones (See Public Policy 30.08). The coastal zone of
Puerto Rico is the location for a large number of historical and archeological sites.
The Puerto Rico Management Act specifically mentions Old San Juan as being an area of
important historic zoning, and indeed the coastal zone of Puerto Rico is the location for a large
number of historical and archeological sites. The NRHP includes 262 sites in Puerto Rico, and of
these a significant number are in the coastal plains. Archeological sites in Puerto Rico amount to at
least 408, including pre-Colombian settlements and 14 shipwrecks in Puerto Rico coastal waters that
are designated as historical and archeological sites.
The failure to appreciate any archeological study of the area prior to work, may have
overlooked important ruins at the project site. For example, this map shows a curved
curved area offshore that may not be consistent with geological eolianite platform formation, specific
ally near the east side of the historic wall, where no benthic hard bottoms is visible
on the shoreside of these structures. Where the breaking waves demarcate the tallest part of
this offshore structure, there is an unnatural curve highlighted by the white caps,
that moves around the point. This seems to be contiguous with the historic wall that jetties out perpen
dicular at the site. A straight line drawn from this wall inland, connects to historic wall associated
with the Second Line of Defense near the restaurant Cathay.(25)
The project is clearly non-compliant to Puerto Ricos Coastal Zone Management Program
which failed to enjoy a specific coastal zone consistency evaluation and continues to
ignore and or directly violates the following local laws that the Coastal Zone Management
Program of Puerto Rico recognizes as the enforceable policy put in place to protect the
irreplaceable archeological and historical patrimony of the people:
! Law No. 374 of May 14, 1949, as amended, orders ARPE to preserve the values of Puerto Rico and
protect historical and tourist zones. (we are not yet clear if and how Law 161 2009 impacted this
law)
! Law No. 10 of August 7, 1987 created the Sub-Aquatic Archeological Sites and Resources
and Study Council. (we are not yet clear if and how Law 161 2009 impacted this law)
! Conservation
Law 112 of July 20, 1988, as amended, created the Puerto Rico Terrestrial Archeological Patrimony
Council.
! Protection
Law No. 254 of 2006, Public Policy for the Sustainable Development of Tourism in Puerto Rico.
not yet clear if and how Law 161 2009 impacted this law)
! (we areFailure
to comply to these specific laws, cited in Puerto Ricos Coastal Zone
Management Plan constitutes a violation of the Coastal Zone Management Act in Puerto Rico,
therefor this verification was issued by the Corps for an NWP that fails to comply with Puerto Ricos
Coastal Zone Management Plan.
!
IMPACTS
!
To History:
! A February 19, 2015 photo shows damages to an historic wall that extends out to the sea (43).
A Sept 5, 2015 photo shows a recent crack to the wall, that did not exist in the February photos.
(42,43,45,46,47,67,68,69) Damages were structural and serious and happened after the project began
and the breakwater was installed. The wall-related construction has fallen on top of rocks of same size
and colors as the breakwater fill, and with difference characteristics than the historic wall. Based on
the review of photos from the site, we believe this damage was likely caused by the breakwater,
22
which redirected and focussed water in-between the breakwater and the wall. This area has grown
increasingly larger over time as the focussed water carves into the area.(48) The are next to the wall
is increasingly being victimized by the focussed current, impacting the integrity of this wall, and
based on comparison of photos of the geotextile fill on the beach, possibly undermining and
destabilizing the fill structure towards the east. Again, the breakwater and entire project was
permitted and installed without benefit of any studies, modeling or buffer zone with respect to either
the historic wall, or benthic sessile endangered species found less than 150ft from this project site.
The Corps and other federal agencies engaged in this permitting process define current
circulation (40 CFR 230.23) patterns and waters as: (a) Current patterns and water circulation are the
physical movements of water in the aquatic ecosystem. Currents and circulation respond to natural
forces as modified by basin shape and cover, physical and chemical characteristics of water strata and
masses, and energy dissipating factors. We understand that the Corps must be concerned about the
possibly loss or modification of circulation patterns as follows (40 CFR 230.23): (b) Possible loss of
environmental characteristics and values: The discharge of dredged or fill material can modify current
patterns and water circulation by obstructing flow, changing the direction or velocity of water flow,
changing the direction or velocity of water flow and circulation, or otherwise changing the
dimensions of a water body. As a result, adverse changes can occur in: Location, structure, and
dynamics of aquatic communities; shoreline and substrate erosion and deposition rates; the deposition
of suspended particulates; the rate and extent of mixing of dissolved and suspended components of
the water body; and water stratification.
The Corps and other Federal agencies engaged in this permitting process, must be concerned
with normal water fluctuations as described in 40 CFR 230.24: (a) Normal water fluctuations in a
natural aquatic system consist of daily, seasonal, and annual tidal and flood fluctuations in water
level. Biological and physical components of such a system are either attuned to or characterized by
these periodic water fluctuations. The Corps must be concerned about the possible loss of these
environmental characteristics and values as follows: The discharge of dredged or fill material can
alter the normal water-level fluctuation pattern of an area, resulting in prolonged periods of
inundation, exaggerated extremes of high and low water, or a static, nonfluctuating water level. Such
water level modifications may change salinity patterns, alter erosion or sedimentation rates, aggravate
water temperature extremes, and upset the nutrient and dissolved oxygen balance of the aquatic ecosystem. In addition, these modifications can alter or destroy communities and populations of aquatic
animals and vegetation, induce populations of nuisance organisms, modify habitat, reduce food
supplies, restrict movement of aquatic fauna, destroy spawning areas, and change adjacent, upstream,
and downstream areas.
!
SEDIMENTATION PLUMES
!
Photos of dense sediment plumes were captured at the site, and are representative of chronic
impacts to the area. Two plumes photographed were associated with storm water runoff that has yet
to be rectified almost a year after the project was permitted by the Corps.(42,69,57,58) One dense
plume present for a few days after the impact was photographed when contractors pushed eroded soils
from the unstabalized work site, directly into the coastal waters.(41)
The project manager, Axel Carrasquillo, informed us in March 2015, that the U.S.
Environmental Protection Agency (EPA) contacted him in response to citizen complaints regarding
impacts to coastal waters from this project, and they were working with EPA to implement a
Stormwater Pollution Prevention Plan (SWPPP) at the site. Ironically, the contractors used heavy
equipment to move the mud that had eroded and accumulated at the base of the landslide, directly into
these CH listed coastal waters. (41) The contamination of coastal waters from the mud eroding from
this landslide was exactly what this elaborate project sought to prevent.
To date, neither PRHTA nor their contractors, the Del Valle Group S.P., are listed in the
Environmental Protection Agencys (EPA) database as having a National Pollution Discharge
23
Elimination System (NPDES) permit for the landslide repair project. (36) However, both Omega
Engineering Corp., and Authority for the Infrastructure Financing of the Commonwealth (AFI a it is
known by its Spanish acronym) working on the Paseo Lineal, Puerta de Tierra, have two almost
identical NPDES Construction General Permits on file with EPA that includes the landslide area.
When applying to the EPA for these NPDES permits, both Omega and AFI provided false information
to the regulators regarding the presence of endangered species, endangered species CH and historic
artifacts. (35).
There was no special condition requiring that a certified Plan for the Control of Erosion and
Sedimentation (Plan CES) be on file with the local Environmental Quality Board (EQB). The
landslide was made worse by the logistics required for implementing the excessive fill and fix,
specifically the construction and use by heavy equipment of an access road observed and
photographed canalizing runoff to the beach at every site visit (67,68,69). Experts documenting the
impacts to the corals reference the unstabalized worksite in their report. Erosion and sedimentation
from this site is the most probable source of infection of an offshore endangered coral found in this
area. This observation was substantiated by plume photos taken on the September 5 2015 site visit,
which documented an east-west littoral drift moving a dense sediment plume resulting from only
3.5mm of rainfall to the area where the infected coral was documented. (42,58,69) The report from
experts had been forwarded to agencies at no cost in March, 2015. (13,14,15,62,63) An elkhorn coral,
(A palmata) was documented offshore recently infected with patchy necrosis.(22) Based on the size
of the necrosis, and the known rate of progression of this disease, the estimate for time infection is
between 7-10 days earlier.(38) Rainfall data form the month of February corroborates that storm
water runoff was likely from this site 7-10 days earlier. (55) On March 5th, project proponents pushed
soil that had eroded from the site, directly into these coastal waters and resulting in a plume that
lasted for days and was observed and photographed by Dr. Villaverde,during periods of no rain. (41)
The chronic erosion of the small particle fill from this site results in turbidity which
constitutes significant threats of area habitat modification that can impair essential behavioral
patterns, including turtle and manatee grazing and future coral settlement in the area. Impacts like this
are linked to coral disease and mortality. This impact has been resulting in chronic impacts that will
likely result in habitat modification or degradation where benthic sedentary creatures are likely to be
killed and foraging endangered species like the sea turtles are likely to become diseased. The
declining water quality associated with plumes impacts breeding, feeding and sheltering of all listed
endangered and threatened species in the area. (2,19,34,65,66)
The excessive project permitted destroyed a 60m stretch of the once beautiful and historic
Bajamar Beach in Puerta de Tierra. The beach destroyed as a result of the excessive project has had
critical cultural and economic ramifications impacting area sports, recreation, tourism and educational
uses.(3,42,46,48,49,68,69) Destroyed was the view of the sparkling intertidal area, juxtaposed to the
background of an historic wall associated with the Second Line of Defense,1794. (3,45,49,48)
Destroyed were the ecological services provided to the people of Puerta de Tierra and Puerto Rico,
from the shoreline eolianite, or beach pavement, or possible Second Line artifacts area that constitutes
shallow fish nursery areas considered essential fish habitat (EFH), as well as the protections offered
by the beach itself and cliff-side vegetation. The destruction of the east end of the Bajamar beach
ended this area as nesting use for endangered turtle nesting.
The Corps and other federal agencies engaged in this permitting process, define turbidity
associated with sedimentation of coastal water bodies (40 CFR 230.21) as suspended particulates in
the aquatic ecosystem that consist of fine-grained mineral particles, usually smaller than silt, and
organic particles. Suspended particulates may enter water bodies as a result of land runoff, flooding,
vegetative and planktonic breakdown, re-suspension of bottom sediments, and mans activities
including dredging and filling. Particulates may remain suspended in the water column for variable
periods of time as a result of such factors as agitation of the water mass, particulate specific gravity,
particle shape, and physical and chemical properties of particle surfaces.
24
The Corps and other federal agencies engaged in this permitting process, must be concerned
about the possible loss of environmental characteristics and values, as a result of fill, as 40 CFR
230.21 states: The discharge of dredged or fill material can result in greatly elevated levels of
suspended particulates in the water column for varying lengths of time. These new levels may reduce
light penetration and lower the rate of photosynthesis and the primary productivity of an aquatic area
if they last long enough. Sight-dependent species may suffer reduced feeding ability leading to
limited growth and lowered resistance to disease if high levels of suspended particulates persist. The
biological and the chemical content of the suspended material may react with the dissolved oxygen in
the water, which can result in oxygen depletion. Toxic metals and organics, pathogens, and viruses
absorbed or adsorbed to fine-grained particulates in the material may become biologically available to
organisms either in the water column or on the substrate. Significant increases in suspended
particulate levels create turbid plumes, which are highly visible and aesthetically displeasing. The
extent and persistence of these adverse impacts caused by discharges depend upon the relative
increase in suspended particulates above the amount occurring naturally, the duration of the higher
levels, the current patterns, water level, and fluctuations present when such discharges occur, the
volume, rate, and duration of the discharge, particulate deposition, and the seasonal timing of the
discharge.
The Corps and other federal agencies engaged in this permitting process define Water (40
CFR 230.22) as (a) Water is the part of the aquatic ecosystem in which organic and inorganic
constituents are dissolved and suspended. It constitutes part of the liquid phase and is contained by
the substrate. Water forms part of a dynamic aquatic life-supporting system. Water clarity, nutrients
and chemical content, physical and biological content, dissolved gas levels, pH, and temperature
contribute to its life-sustaining capabilities. The Corps must be concerned about the possible loss of
environmental characteristics and values of water from fill activities as follows ( 230.22): The
discharge of dredged or fill material can change the chemistry and the physical characteristics of the
receiving water at a disposal site through the introduction of chemical constituents in suspended or
dissolved form. Changes in the clarity, color, odor, and taste of water and the addition of
contaminants can reduce or eliminate the suitability of water bodies for populations of aquatic
organisms, and for human consumption, recreation, and aesthetics. The introduction of nutrients or
organic material to the water column as a result of the discharge can lead to a high biochemical
oxygen demand (BOD), which in turn can lead to reduced dissolved oxygen, thereby potentially
affecting the survival of many aquatic organisms. Increases in nutrients can favor one group of
organisms such as algae to the detriment of other more desirable types such as submerged aquatic
vegetation, potentially causing adverse health effects, objectionable tastes and odors, and other
problems.
The Corps and other Federal agencies engaged in this permitting process, must be concerned
about impacts of fill to water related recreation, as described in 40 CFR 230.52: (a) Water-related
recreation encompasses activities undertaken for amusement and relaxation. Activities encompass two
broad categories of use: consumptive, e.g., harvesting resources by hunting and fishing; and nonconsumptive, e.g. canoeing and sight-seeing. (b) Possible loss of values: One of the more important
direct impacts of dredged or fill disposal is to impair or destroy the resources, which support
recreation activities. The disposal of dredged or fill material may adversely modify or destroy water
used for recreation by changing turbidity, suspended particulates, temperature, dissolved oxygen,
dissolved materials, toxic materials, pathogenic organisms, quality of habitat, and the aesthetic
qualities of sight, taste, odor, and color.
The Corps and other federal agencies engaged in this permitting process, must be concerned
about impacts of fill to water related aesthetics 40 CFR 230.53: (a) Aesthetics associated with the
aquatic ecosystem consist of the perception of beauty by one or a combination of the senses of sight,
hearing, touch, and smell. Aesthetics of aquatic ecosystems apply to the quality of life enjoyed by the
general public and property owners. (b) Possible loss of values: The discharge of dredged or fill
material can mar the beauty of natural aquatic ecosystems by degrading water quality, creating
distracting disposal sites, inducing inappropriate development, encouraging unplanned and
incompatible human access, and by destroying vital elements that contribute to the compositional
harmony or unity, visual distinctiveness, or diversity of an area. The discharge of dredged or fill
25
material can adversely affect the particular features, traits, or characteristics of an aquatic area, which
make it valuable to property owners. Activities which degrade water quality, disrupt natural substrate
and vegetation characteristics, deny access to or visibility of the resource, or result in changes in odor,
air quality, or noise levels may reduce the value of an aquatic area to private property owners.
The Corps and other federal agencies engaged in this permitting process must be concerned
about recreational and commercial fisheries as defined and possibly impacted by fill as described in
40 CFR 230.51:(a) Recreational and commercial fisheries consist of harvestable fish, crustaceans,
shellfish, and other aquatic organisms used by man. (b) Possible loss of values: The discharge of
dredged or fill materials can affect the suitability of recreational and commercial fishing grounds as
habitat for populations of consumable aquatic organisms. Discharges can result in the chemical
contamination of recreational or commercial fisheries. They may also interfere with the reproductive
success of recreational and commercially important aquatic species through disruption of migration
and spawning areas. The introduction of pollutants at critical times in their life cycle may directly
reduce populations of commercially important aquatic organisms or indirectly reduce them by
reducing organisms upon which they depend for food. Any of these impacts can be of short duration
or prolonged, depending upon the physical and chemical impacts of the discharge and the biological
availability of contaminants to aquatic organisms.
The Corps and other federal agencies engaged in this permitting process must be concerned
about other wildlife and the possible loss of values associated with their loss in the area of the fill as
defined and in accordance with 40 CFR 230.32 as follows: (a) Wildlife associated with aquatic
ecosystems are resident and transient mammals, birds, reptiles, and amphibians. (b) Possible loss of
values: The discharge of dredged or fill material can result in the loss or change of breeding and
nesting areas, escape cover, travel corridors, and preferred food sources for resident and transient
wildlife species associated with the aquatic ecosystem. These adverse impacts upon wildlife habitat
may result from changes in water levels, water flow and circulation, salinity, chemical content, and
substrate characteristics and elevation. Increased water turbidity can adversely affect wildlife species,
which rely upon sight to feed, and disrupt the respiration and feeding of certain aquatic wildlife and
food chain organisms. The availability of contaminants from the discharge of dredged or fill material
may lead to the bio- accumulation of such contaminants in wildlife. Changes in such physical and
chemical factors of the environment may favor the introduction of undesirable plant and animal
species at the expense of resident species and communities. In some aquatic environments lowering
plant and animal species diversity may disrupt the normal functions of the ecosystem and lead to
reductions in overall biological productivity.
United Nations Environmental Protection, Caribbean Environment Program recognizes that
overall degradation of coastal ecosystems and coral reefs from increases in sediment loads may lead
to important losses in revenue caused by impacts on the tourism and fishing industries and on coastal
development. (71)
The NWP 13 issued is not in compliance to the National Environmental Policy Act (NEPA)
regulations, not in terms of WQC, which was issued after the verification, or with respect to
cumulative impacts from the entire Paseo Lineal project or with respect to the Categorical Exclusion
PRHTA is illegally applying to this project, and which was included into the Corps file on the 24th of
Sept. 6 days after the verification for the NWP-13 was issued. This Categorical Exclusion was a
blanket, fast track, permit [2011-DEC-01585], issued by the Puerto Rico Planning Office (OGPe) on
March 9 of 2011, for all DTOP road work, in all municipalities of Puerto Rico, albeit with the list
of exceptions as to where this environmental permit should not apply, and ironically including areas
susceptible to landslide, or areas with endangered species or areas of archeological concern. This
apparently raised no red flags at the Corps since it was included into the file after they issued their
NWP 13. The Corps oversight failed to recognize the exceptions applied to this sensitive coastal
worksite, even after having been informed in the record, not by the project proponents as is required,
but by NMFS, that the receiving waters are in fact listed as critical habitat for listed corals.
Conditions listed on the Categorical Exclusion exempting the use of this specific exclusion are areas
that are (1a) susceptible to inundation, landslides, or storm surge, (1c) ecologically sensitive areas,
areas with endangered species, (1f) areas of archeological concern, (1h) areas that could involve
26
project discharges into bodies of water. The abuse of the categorical exclusion illegally removed the
meaningful participation of the people in evaluating the cost and risks of project alternatives.(5) .
CFR Title 33 section 330.4 states that DEs will take appropriate measures, such as public
notices, to inform the public of which activities, waterbodies, or regions require an individual 401
water quality certification before authorization by an NWP. CFR Title 33 section 330.4 states that
DEs will take appropriate measures, such as public notices, to inform the public of which activities,
waterbodies, or regions require prospective permittees to make an individual consistency
determination and seek concurrence from the state.
!
!
CLOSING DISCUSSION and REQUESTED ACTION: !
!
In reviewing this project and testimony to the Municipal Assembly of San Juan on the 9 of
February, 2015 from both the Secretary of DRNA and President of the DTOP, regarding their
subsequent investigations, the first and most obvious concern regarding this landslide repair for
which this permit was issued is that it was caused by a problem of land-based, storm water runoff.
Neither the PRHTA nor the Corps conduct or reference any study evaluating the actual cause of the
landslide, where the cause of the landslide would intuitively be needed in order to evaluate options to
repair the landslide. The Sept 5th 2014 site visit demonstrates that storm water runoff has yet to be
addressed at the site.
There were no oceanographic studies or subsequent modeling data submitted to the Corps
that would be needed to determine the cause of the landslide, but also to insure the fix implemented,
which in this case involved the redirection of surface waters by the installation of a porous
breakwater, and could threaten area corals or archeological artifacts, given resulting wave and/or
current refractions, rippling and other modifications to the movement of sand and sediment in these
ocean waters. There were no archeological studies. The extravagant fix implemented was clearly the
least practicable alternative, especially given the high risk it posed to critical habitat listed waters,
sessile endangered corals and works of historical significance located at the site. It seems intuitive
that licensed coastal engineers and NOAA personnel would be aware that any shoreline construction
could pose a threat to benthic as well as a significant area of this shoreline's topography. Approval of
any such project without benefit of oceanographic studies and subsequent modeling is negligent at
best.
The second concern is that the project proponents had obviously violated conditions issued
in the verification for the NWP-13, including excessive fill, and apparently with no repercussions
from the Corps, who understood the project was underway in critical habitat listed waters, with
historic artifacts onsite. The file contained conflicting information and verification for the NWP-13
was issued for different quantities of fill than that applied for by applicants in the ENG 4345 form,
with no studies or communications on file as to how these changes were determined. Despite this
NWP having been reviewed by USFWS and NOAA, this error was not addressed, even though the
current head of USFWS reviewing the document was a former Corps employee.
The third concern is that the Corps issued this NWP from the local Antilles office, in
violation of their discretional authority. With critical habitat corals and historic artifacts of concern at
the site, the project needed letters and/or waivers from the office of the DE. Indeed, in these cases a
pre-construction notification is to be sent by proponents, directly to the DE, and those notifications
must include all resources of public concern. In reviewing this we make an assumption in our
evaluation that an expired ENG 4345 is what they used as a PCN; however, nowhere is there any
documentation as required by law validating this. The three pages that constitute this assumed
application lacked detail as to how logistically the complicated excessive fix is going to be
implemented. There are a few informal email communications noted in the file which reveal that
initially the excessive scouring abatement measures were to be temporary. With absolutely no
27
justification, or amendments to the schematics submitted, these typically temporary measures were
verified as permanent.
The Fourth concern is with regard to irreparable harm. The work associated with the
installation of the breakwater with no buffer or consideration for an historic wall at the project site,
has already resulted in damage to the wall. The unstabalized construction was the obvious source of
urban runoff at the time a patchy necrosis was diagnosed by scientists, observed infecting a listed
elkhorn coral (A. palmata.) This disease was estimated to be 7 - 10 days old on February 16, 2015.
Nitrogen associated with the organics in the runoff have been implicated in the literature as causing
debilitating and lethal fibropalilloma tumors in sea turtles. The sediment resuspends in the waives,
resulting in chronic impacts to these coral reef and sea grass habitats, and the endangered species that
forage here. EFH was completely ignored. The concern is that this unsupported modification to
coastal waters from the breakwater and fill could result in additional harm to the wall and the chronic
transport and deposition of sand directly atop endangered corals found near the project site.
The fifth concern is how casual virtually all communications in the file were between
agencies and the proponents. Where the law requires letters or waivers to proponents clearly stating
they have concluded activities may affect or have no adverse effects to endangered species or
historic objects, we see only casual discussions through email, devoid of analysis and not based on
any data, let alone the best available objective data. Where the law is clear that any such NWP in
areas listed as critical habitat for endangered species requires a complete Section 7 analysis, we see
individuals abusing discretional authority, and coming to their own conclusions that this evaluation is
not warranted. There is serious confusion when a local engineer actually withdraws a request to
NOAA for an information consultation, later referred to in the Corps final MEMO as informal
consultation, when what the law clearly indicates that where critical habitat and endangered species
are present, a complete Section 7 consultation is required and where with respect to Acroporid corals,
NOAA has defined an in-water analysis protocol.
The most disturbing discovery in this analysis implicates all fast tracked NWPs issued in
Puerto Rico. In reading the laws, regulations and guidelines that govern the NWP process, we have
come to understand that there is an expectation of meaningful agency and public oversight when these
are issued, and specifically where endangered species and historically significant artifacts are
concerned. What we have discovered through this analysis is that there has been an abuse of fast
track processes by local agencies, possibly with the specific intent of eliminating any meaningful
agency oversight and public participation.
In dissecting this permit, the law understands the Corps will guarantee meaningful public
participation by requiring direct notification of the District Engineer regarding species and artifacts of
particular concern. The law recognizes the District Engineer as responsible for insuring meaningful
public participation for projects that pose impacts to endangered species or historical artifacts. In this
process the DE was not even consulted.
The fast track NWP 13 issued, assumes meaningful public participation will be enjoyed
through the Water Quality Certification processes at the Commonwealth level, where in this case
proponents submitted an application for certification days after their NWP-13 was issued by the
Corps and , and with no evidence of public notice as required by local law in the file.
This fast track NWP requires compliance to the Coastal Zone Management Act and assumes
meaningful public participation will be enjoyed through Puerto Ricos coastal zone consistency
process, which has itself now been fast tracked for all Nation Wide Permits issued in Puerto Rico. In
this case we argue that the law obviously intended case by case review of these projects, and this
specific NWP is not valid in part because it enjoyed no consistency review.
The only environmental document was a blanket categorical exclusion from OGPe issued to
DTOP of PRHTA for any road work to be done throughout all municipalities of Puerto Rico. While
the categorical exclusion was issued years earlier, it was submitted to the file at the Corps, after the
verification was issued. Almost the entire list of exceptions for the use of this fast track permit can be
found at this work site.
28
While we understand that the NWP does not obviate the need for PRHTA to obtain other
federal, state, or local permits, approvals or authorizations required by law, in so issuing this NWP
without regard to those laws, the Corps fails to comply with their responsibility to permit only
activities compliant with this plan, has issued a verification for activities which violate virtually all
state laws put into place to safeguard species and artifacts of particular concern in the coastal zone,
and for which Puerto Ricos CZMP defers as evidence of enforceable policy implemented to protect
these critical coastal resources of great public importance. Demonstrated enforceable policy brings
to the Commonwealth close to 10 million dollars annually earmarked towards the protection of Puerto
Ricos coastal zone.
!This Landslide Project is also the Paseo Lineal Project
If we look at the broader picture for the area we see cumulative impacts to the entire soft clay
loam cliff face of this ecologically sensitive, and spectacular high energy coastline now besieged by
development moving rapidly, and in blatant violation of a green zoning put into place to protect
coastal and historic resources. Most disturbing is that at no time in this process and despite
controversy raised by citizens in the press and in complaints issued directly to the Corps, has the
Corps evaluated this project as it intersects with the Paseo Lineal project. To us this failure can only
be a reflection of a permitting process that is either corrupt or negligent.
Both the Paseo Lineal project and the land slide project are installing walls and moving ocean
terracing along the soft cliff face and to the waters edge without benefit of DRNA concession, clearly
within the maritime terrestrial zone. The Paseo Lineal project would likely not have been issued a
federal NWP that skirts meaningful public participation. It is clear that agency oversight would also
likely be diminished if the preface of permit were reparation of a landslide harming road
infrastructure vs.the obvious and massive project now moving along the coastline in violation of
zoning, and causing irreparable harm to endangered corals, critical habitat listed waters, pre-pre
columbian archeological ruins, and Spanish historical ruins eligible for listing. The eastern most end
of the Bajamar beach area was clearly the most sensitive to terrace for the Paseo Lineal, since it
involved the most fill and in listed waters.
At the February 19 public hearing demanded by the people of the San Juan Municipal
Assembly, the San Juan assembly representative responded to testimonies on the illegalities of these
projects by saying Its difficult for the Municipality to obtain all the necessary permits for these
works. In a March visit to the PRHTA local project managers office, Axel Carasquillo, we found
some studies on file apparently associated and funded for by money allocated by the Paseo Lineal
project.
!
Regarding the peoples dominion of this shore, the jurisdictional determination on this project
was issued by the Corps on the same day as it was submitted, indicating no site visit by the Corps
prior to validation. There were no official physical markers of a delineation observed installed at any
point near the landslide or down the beach associated with the Lineal project.
The absence of
physical markers of the maritime terrestrial zone are not just needed to delineate the publics
dominion of the shore, but based on the schematics submitted to the Corps describing this excessive
project allegedly to repair the landslide, physical markers onsite would be needed to guide contractors
for proper installation of this clearly excessive fix with respect to the water line, high tide mark and
highest wave point.
!
Consistent with the February 9, 2015 testimony of agency officials to the Municipal
Assembly of San Juan, storm water discharge is clearly the greatest threat to the integrity of this
fragile cliffside shore, the impacts from which have been more or less minimized by sewers that move
storm water south, down to the bay. This smart planning measure combined with the past propagation
and protection of the cliff face with permeable vegetation, and green zoning, has resulted in one of the
last remaining thriving stands of very old elkhorn coral (A. palmata) remaining in the Caribbean,
despite this being offshore of an urban area. These corals are located in an area of high circulation
and in an important littoral drift that embraces the north shore of the island, and transports fish and
coral larval into replenish this area as well as transporting fish and larva coral to replenish other
29
important reef areas from this reef. The oceanographic conditions surrounding points create eddies
which allows the water to be slowed and captured, so larval fish and coral have time to recruit in
these areas.
!
While the use of the project as a bike/walking trail sounds benign, these projects both have
the potential to continue to cause irreparable harm to the existing road infrastructure this DTOP
project allegedly seeks to protect, as well as causing further and irreparable harm to the cultural and
natural patrimony of the people in this area from construction practices, irrespective of use.
Impermeable concrete is easily undermined or over-mined as was seen with the landslide, and long
term re-direction of storm water tubes to the Atlantic will destroy the reef.
!
Proper permitting would have involved analysis of the Least Environmentally Damaging
Practicable Alternative or LEDPA as the Corps likes to call it, to include a description of the impacts,
beneficial or adverse to the aquatic ecosystem associated with each of the remaining alternatives, and
a description of the overall environmental impacts associated with each of the remaining alternatives.
In light of these facts the Corps and/or EPA can suspend (temporarily cancel) the
authorization, already invalidated by violations discussed above and consistent with 33 CFR 330.5.
The Corps and EPA need to look at this project as a part of the Paseo Lineal project to address a
sustainable and practicable solution going forward.
REQUESTED ACTION
We are providing this analysis to jurisdictional authorities requesting that agencies suspend the
NWP and stop the larger common plan of development, the Paseo Lineal, Puerta de Tierra, in
order to prevent further harm to endangered species and cultural resources, while a complete
investigation is conducted. !
Sincerely, !
Mary Ann Lucking

Director
!
!
!
!
c.
Jose J. Rivera !
Teresa Hudson
Noel Acevedo
!
!
!
!SIGN ONS:
!
Ricardo de Soto
GuardaMar Caribe
Director
10 E, calle E, Jardines de Caguas
Cuaguas, PR 00727
guardamar007@gmail.com
30
Sonia Villaverde, Ph.D

Presidente
LOLA Costanera, Inc.
610 Olimpo #7
San Juan, PR 00907
lolacostanera@gmail.com
Francisco Lpez Mjica

Arrecifes Pro Ciudad Inc.
6981 Pine Grove Apt 11 A
Carr 187 Carolina PR 00979
arrecifeislaverde@gmail.com
Nelson Perez Espinosa

Director
Coalicin Playa para Todos
2306 Calle Laurel
San Juan, PR 00913
noideapr@gmail.com
Alberto de Jesus
Presidente
Amigos del Mar Inc.
M.A.R
PO Box 2176
Vega Baja PR 00694
amigosdelmarpr@gmail.com
Ricardo Laureano de Angel

Independent Reef Researcher and Spokesperson
Vegabajeos Impulsando desarrollo Ambiental Sustentable (VIDAS)
PMB 304
Avenida Alejandrino #3071
Guaynabo, PR 00969
Coalicin Restauracin Ecosistemas Santurcinos (CRES)

Yvette M. Nuez, Directora Ejecutiva
Juan Murcia Eslava, Bilogo Marino
crespuertorico@gmail.com
Luz M. Davila
Org. Consejo Comunitario de Seguridad de Pta. de Tierra, S.J., P.R.
252 ave. de la constitucionPta.de Tierra,S.J.00901
devilaluz44@yahoo.com
!
!
31
Doris Angler Morales

AVISAJ
Viejo San Juan calle Sol #10
dorisanglero@yahoo.com
Carmen Alicia Morales, Ph.D

Historian
De la Cruz #51
VSJ, PR 00901
carmenmorales31@gmail.com
Freddy Velez Garcia

Former Deputy Director, ICP
315 Tetuan Apt. 4F
VSJ, PR 00901
Ramn Olivencia, Esq.

PO Box 9022665
San Juan, PR 00902-2665
ramonolivencia@gmail.com
Giovanni Caravaggio
450 Avenida de la Constitucin PH H
San Juan, PR 00901
divemastergc@gmail.com
Bibiana Maria Hernandez Suarez

Cond. Falansterio Apt. D-12,
Puerta de Tierra, San Juan, PR 00901.
ahsdjs23@yahoo.com
Laura Candelas
417 Calle del Sol
San Juan, Puerto Rico
lcandelas@caribe.net
Janice Petrovich EdD

Calle San Sebastin #256
San Juan PR 00901
Janice.petrovich@gmail.com
!
!
!
!
!
!
32
!
Acronyms and Abbreviations
!
AFI
BMP
CATEC
CH
Corps
DE
DRNA
DTOP
EFH
EIS
EPA
EQB
ESA
FOIA
JD
MSA
MTZ
NEPA
NHPA
NMFS
NOAA
NPDES
NRHP
NWP
OGPe (esp)
Plan CES
PRHTA
SAM
SAV
SWPPP
UPR
WOTUS
WQC
!
!
!
!
!
!
!
!
!
!
Autoridad para el Financiamiento de la Infrastructura

Best Management Practice
Center for Applied Tropical Research and Conservation
Critical Habitat
U.S. Army Corps of Engineers
District Engineer
Department of Natural and Environmental Resources of Puerto Rico
Department of transportation and Public Works of Puerto Rico, PRHTA
Essential Fish Habitat
Environmental Impact Study (DIA esp- Declaracin Impacto Ambiental)
U.S. Environmental Protection Agency
Puerto Rico Environmental Quality Board
Endangered Species Act
Freedom of Information Act
Jurisdictional Determination
Magnusus-Stevens Fishery Conservation and Management Act
Maritime Terrestrial Zone (ZMT- Zona Martimo Terrestre)
National Environmental Policy Act
National Historic Preservation Act
National Marine Fisheries Service, NOAA
National Oceanic and Atmospheric Administration
National Pollutant Discharge Elimination System
National Registry of Historic Places
Nation Wide Permit
Puerto Rico Permit Management Office / Ofic. de Gerencia de Permisos
Plan to Control Erosion and Sedimentation certified by Puerto Rico EQB
Puerto Rico Highway and Transportation Authority
Sociedad Ambiente Marino
Submerged Aquatic Vegetation
Storm Water Pollution Prevention Plan
University of Puerto Rico
Waters of the United States
Water Quality Certificate
33
!
REFERENCES!
!
1. Arutchelvi, J.,(et. al ) 2008. Biodegradation of Polyethylene and polypropylene.

Journal of Biotechnology, Vol 7, Jan 2008 pp 9-22. !
Indian
2. Baimbridge, Zoe T., Eric Wolandki, Jorge G. Alvarez-Romero, Stephen E. Lewis, Jon E
Brodia 2012 Fine sediment and nutrient dynamics related to particle size and flox !
formation in a Burdiken River flood plume, Australia. Marine Pollution Bulletin !
65(2012)236-248.!
3. Before photos found in the Corps file of above referenced project contrasted to Google
Earth imagery taken in Jan and Feb 2015, after excessive fix was underway. LINK:
http://coralations.phanfare.com/7004358!
4. Bren, L. and C. Leitch. 1985. Hydrologic effects of a stretch of forest road. Australian
Forest Research 15: pages 183-194.!
5. Categorical Exclusion 2011-DEC-01585, 9 MAR 2011, Pg 11 of Link A - Joint Application

Permit:
https://es.scribd.com/doc/262978351/PDT-SAJ-2014-00784-CORPS-FILE-AJOINT-APPLICATION-pdf!
6. Complaint to US EPA Region II, February 1st, 2015 Sonia Villaverde https://
www.scribd.com/doc/275886589/Report-an-Environmental-Violation-InformationSubmitted,
March 3, 2015, https://www.scribd.com/doc/280745448/EPA-Violacion-
Ambiental-March-3-2015!
7. Complaint to DRNA from area organizations regarding coastal construction concerns

associated with the larger common plan of development, Paseo Lineal, Filed April 20,
2015: https://es.scribd.com/doc/262570560/DRNA-Querrella-Pasaeo-Linael-Puerto-deTierra!
8. Complaint to EPA March 3, 2015 Sonia Villaverde regarding the pushing of sediment
directly into coastal waters.
https://www.scribd.com/doc/280745448/EPA-ViolacionAmbiental-March-3-2015!
9. Corps discusses temporary vs. permanent fixes in informal email on pg 12 of Link. Link
also includes those schematics sent to the Corps at the time of this discussion, which
diid not change. https://es.scribd.com/doc/263065577/Pdt-Saj-2014-00784-Corps-File-fJoint-Application-59-75.!
10. Corps email withdrawing Sect 7 request from NOAA.

262977112/PDT-Section-7-From-Corps-File!
https://es.scribd.com/doc/
11. Critical Habitat map designation provided by NOAA 2008 for Acroporid corals: http://
coralations.phanfare.com/3080423#imageID=54984054!
12. Delineation of the Maritime Terrestrial Zone for project areas of Puerta de Tierra. https://
www.scribd.com/doc/280653668/ZMT-Paseo!
13. Documentation that Dr. Villaverde forwarded Habitat Characterization report to the
Corps, March 4, 2015: https://www.scribd.com/doc/275885615/Notice-of-a-Violation-ofthe-Clean-Water-Act-and-Law-147-of-1999-Coral-Reef-Law-USACE-ARMY-B!
34
14. Documentation that Dr. Villaverde forwarded Habitat Characterization report to the
DRNA: https://www.scribd.com/doc/275888485/March-3-2015-Notice-of-Violation-of-theClean-Water-Act-and-Law-147-of-1999-Coral-Reef-Law-DRNA-March-3!
15. Documentation that Dr. Villaverde forwarded Habitat Characterization report to NOAA:
https://www.scribd.com/doc/275883848/Email-to-NOAA-February-19-2015-at-5-01-PMPreliminary-Determination-of-Acroporid-Coral-Dch-Across-Puerta-de-Tierra-Coral-Reefs!
16. DRNA Letter to surveyor regarding concessions due to DRNA for project moving in the MTZ, July
2015, and mention of the erosion project moving as part of the greater Paseo Lineal development
plan. https://www.scribd.com/doc/279773405/DRNA-ZMT-PDT-Concessions-2014-07-31PPT-Fase-III-IV-DRNA-Aprobacion-Deslinde-ZMT-3-pdf !
17. Dutton, A., Loague, K., and B. Wemple. 2005. Simulated effects of a forest road on near- surface
hydrologic response and slope stability. Earth Surface Processes and Landforms 30: pages
325-338.!
!
!
!
!
!
18. EPA Storm water runoff Best Management Practices (BMPs):https://www.scribd.com/doc/

272392792/Erosion-Control-BMPs-Silt-Fencing!
19. EPA - Tech info regarding impacts from SABs http://water.epa.gov/scitech/datait/tools/warsss/
sabs.cfm, Tech info regarding proper implementation of BMPs at a construction site: LINK!
20. Fill area calculation (basic): https://es.scribd.com/doc/273746407/Actual-Fill-PDT-Landslide!
21. Google Earth Photo of Side, February 2015: http://coralations.phanfare.com/
7004358#imageID=245783743!
22. Hernandez-Delgado, E. and Ivangs Rivera, February 16, 2015 Preliminary Determination of
Acroporid Coral Designated Critical Habitats Across Puerta de Tierra Urban Coral Reefs,
San Juan, Puerto Rico. Determination conducted in association with the Sociadad
Ambiente Marino (SAM) and the University of Puerto Ricos Center for Applied Tropical
Ecology and Conservation (CATEC) https://es.scribd.com/doc/275380786/HernandezRivera-2015-Pta-Tierra-Coral-Reefs-Report!
23. Historic Patrimony Reference ACHP: http://www.achp.gov/docs/NHPA%20in%20Title

%2054%20and%20Conversion%20Table.pdf ACHP, vigilant public: http://www.achp.gov/docs/
CitizenGuide.pdf.!
24. Historic patrimony reference: First Line of Defense Listing: [La Lnea de Apostaderos; Primera
Lnea Defensiva; Reducto de San Gernimo del Boquern; Cabeza de Puente de San Antonio;
Batera del Escambrn; Polvorn de San Gernimo; sector este de la Isleta de San Juan]; listed
on the 25th of September, 1997, 97001136.!
!
!
!
!
!
25. Historic Wall, possible new discoveries, Second Line of Defense Questions offshore: https://
es.scribd.com/doc/277223659/Second-Line-Questions!
26. Joint Permit Application Corps file: - [Scanned Section A]: https://es.scribd.com/doc/262978351!
27. Lighting violation sea turtle photos:
6958344#imageID=242699145!
http://coralations.phanfare.com/
28. Lindeman, K.C and David B. Snyder. 1999 Nearshore hardbottom fishes of Southeast Florida and
effects of habitat burial caused by dredging. Fishery Bulletin 97(3):508-525.!
35
29. Location of sign demarcating landslide project to actual project site: Location of sign is 150m East
of project site: http://coralations/phanfare.com/6993667!
!
!
30. Melendez,.Sharon link to archeological evaluation: https://www.scribd.com/doc/280714907/

ArcheologicalEvaluation-Fase-1a-PaseoPuertadeTierra!
31. MEMO Sept 18, 2015. A memo found in the Corps file entitled: CESAJ-RD-NA, MEMORANDUM
FOR RECORD, SUBJECT: Dept. of the Army Memorandum Documenting Verification for the
SAJ-2014-00784 (NW-CGR) and signed by Project Manager, C. G Roman and Sildulfo Castillo
on Sept 18th, 2014: https://es.scribd.com/doc/262978351/PDT-SAJ-2014-00784-CORPS-FILEA-JOINT-APPLICATION-pdf!
32. NEWS- Press from Panama regarding Omega Contractors. La Prensa Panam http://
m.prensa.com/in_english/money-laundering_21_4292030756.html La Prensa
Panam http://m.prensa.com/in_english/Monada_Luna_21_4253784581.html!
33. NOAA protocol Section 7 Acroporids https://es.scribd.com/doc/272756445/Noaa-Section-7Acroporids!
!
!
34. NOAA threats to coral reef from sedimentation: www.coralreef.noaa.gov/threats/pollution.

Sediment plumes!
35. NPDES - False information presented to regulators at the US Environmental Protection Agency
by Omega and PRHTA on NOIs submitted to EPA regarding endangered species and historic
artifacts. Omega: PRR12A724: http://ofmpub.epa.gov/apex/aps/
fp=119:4:10625819686541::NO::P4_PERMIT_ID,P4_PERMIT_TYPE:19903,NOI
PRHTA,
PRR12A786: http://ofmpub.epa.gov/apex/aps/f?
p=119:4:10625819686541::NO::P4_PERMIT_ID,P4_PERMIT_TYPE:19903,NOI!
!
!
36. NPDES Storm Water Discharge General Construction Permits, San Juan area: https://
www.scribd.com/doc/279777886/2012-Construction-General-Permit-ALL-SAN-JUAN!
37. NRCS dirt road construction guidelines: 1) http://www.nrcs.usda.gov/Internet/
FSE_DOCUMENTS/nrcs143_026142.pdf,
USDA dirt road specifications. 2) http://
www.nrcs.usda.gov/wps/portal/nrcs/detail/national/technical/references/?cid=nrcsdev11_001020!
!
!
38. Personal communication with Dr. Edwin Hernandez Delgado regarding rate of progression of
patchy necrosis in elkhorn coral (A. palmata.) (Saturday Aug 15, 2015. )!
39. Photos Aug 12, 2015 Aerial Puerta de Tierra coastal projects. Access via CORALations' photo
album link, with extended file information and geo reference, available for view or download:http://
coralations.phanfare.com/7004896!
40. Photos Sept 2, 2015 Aerial Puerta de Tierra coastal projects. Access via CORALations' photo
album link, with extended file information and geo reference, available for view or download:
http://coralations.phanfare.com/7010447!
41. Photos and Video March 3, 2015 impacts to coastal water quality from direct fill to coastal waters.
Photos taken by Dr. Sonia Villaverde. Access via CORALations' photo album link, with extended
file information and geo reference, available for view or download: http://
42. Photos of impacts to coastal water quality, Sept 5, 2015. Photos taken by Dr. Sonia Villaverde.
Access via CORALations' photo album link, with extended file information and geo reference,
available for view or download: http://coralations.phanfare.com/7008761!
36
43. Photo: Damage to historic wall, Feb 19,2015: Access via CORALations' photo album link, with
extended file information and geo reference, available for view or download, IMG_2447.JPG
DateTime 2015:02:19 15:13:22
http://coralations.phanfare.com/6830542#imageID=234123109!
44. Photos May 22, 2015 taken by Ing Romero: Access via CORALations' photo album link, with
extended file information and geo reference, available for view or download: http://
45. Photos Feb 22, 2015 taken by Carmen Alicia Morales: Access via CORALations' photo album
link, with extended file information and geo reference, available for view or download: http://
46. Photos March 10 2015: Access via CORALations' photo album link, with extended file information
and geo reference, available for view or download: http://coralations.phanfare.com/
6842217#imageID=234884376!
47. Photo historic wall new cracks. Photo taken by Dr. Sonia Villaverde Sept 5, 2015. Access via
CORALations' photo album link, with extended file information and geo reference, available for
view or download: http://coralations.phanfare.com/7008761#imageID=246178492
48. Photos showing focused water impacts to the wall and eastern most side of project from
installation of breakwater from February 6 to March 3, 2015. Access via CORALations' photo
album link, with extended file information and geo reference, available for view or download.
Photos taken by Dr. Sonia Villaverda: http://coralations.phanfare.com/7004552
49. Photos of impacts to coastal water quality, February 22, 2015. Photos taken by Dr. Sonia
Villaverde. Access via CORALations' photo album link, with extended file information and geo
reference, available for view or download: http://coralations.phanfare.com/7004800!
!
!
50. Polypropylene erosion control matting causes environmental problems.: http://

www.coastal.ca.gov/nps/Wildlife-Friendly_Products.pdf!
51. Polypropylene is unstable in UV light, even when treated (with toxic phenolics) some
manufactures limit even woven polypropylene fabric to two weeks with UV. exposure: http://
www.scribd.com/doc/270992674/Polypropalene-Geotextiles!
52. Project is moving as part of a larger common plan of development: 1) the two projects intersect
the same areas. https://www.scribd.com/doc/279492231/Fase-IVScreenshot-2015-07-20-17-51-10-1, https://www.scribd.com/doc/279490698/Fase-III-PaseoLineal-DTOP-AFI, Terracing: https://www.scribd.com/doc/280452080/Plan-Puerta-de-TierraTerraces-pd, Wall construction in utilities plan: https://es.scribd.com/doc/263243191/Page-193Reference-to-RETAINING-WALL-257530478-paseo-puerta-de-tierra-plan-2-pdf, 2) the two
projects moving in the same space likely share financing for phase III: https://es.scribd.com/doc/
279490698/Fase-III-Paseo-Lineal-DTOP-AFI, and IV: https://es.scribd.com/doc/279492231/
Fase-IV-Screenshot-2015-07-20-17-51-10-1, 3) Aerial photos to date show similar looking
terraced constructions in front ot similarly constructed walls. Aerial photos August 12, 2005: http://
coralations.phanfare.com/7004896. Aerial photos September 2, 2005: http://
coralations.phanfare.com/7010447.!
!
!
!
53. Project schematics that refer to the 2nd. generation wall as the wall damaged: https://
www.scribd.com/doc/263059107/Pdt-Saj-2014-00784-Corps-File-d-Joint-Application-37-to-45!
54. Project verification/ permit issued SAJ-2014-00784: https://www.scribd.com/doc/272390514/
Corps-Permit-DTOP-2015-03-09-111415-4!
55. Rainfall data, February 2015:https://es.scribd.com/doc/277005602/44-Weather-History-for-SanJuan-PR-Weather-Underground!
37
!
!
!
!
56. Rainfall data, March 2015: https://es.scribd.com/doc/277005607/Weather-History-March-1March-7-San-Juan-PR-Weather-Underground!

57. Rainfall data July 12, 2015: https://www.scribd.com/doc/277518802/July-12-2015-plume-PDT!
58. Rainfall data, Sept 5 2015: https://www.scribd.com/doc/278906017/PDT-Weather-History-forSan-Juan-PR-Weather-Underground!
59. Ramos-Scharron, C. and L. MacDonald. 2005. Measurement and prediction of sediment
production from unpaved roads, St John, US Virgin Islands. Earth Surface Processes and
Landforms 30: pages 1283-1304!
!
!61. Ramos-Scharron, C. and Lee MacDonald. 2007. Measurement and prediction of natural and
sediment sources, St. John, U.S. Virgin Islands. ScienceDirect 71: pages 250-266.
!62. anthropogenic
Response to Dr. Villa Verde from Corps requesting more information. March 2015: https://
60. Ramos-Scharron, C., and L. MacDonald. 2006. Runoff and suspended sediment yields from an
unpaved road segment, St John, US Virgin Islands. Hydrological Processes 21: pages 35-50.!
www.scribd.com/doc/280744536/Notice-of-Violation-of-the-Clean-Water-Act-and-Law-147of-1999-Coral-Reef-Law-EMAIL-to-Jose-Cedeno-Maldonado-March-4-2015
!63. Response to Villaverde / Lucking from NOAA Lisa Marie Carruba March 2015: https://
www.scribd.com/doc/280759669/Preliminary-Determination-of-Acroporid-Coral-Dch-AcrossPuerta-de-Tierra-Coral-Reefs-Email-FROM-Lisamarie-Carruba-Noaa-Federal, https://
www.scribd.com/doc/280761310/Preliminary-Determination-of-Acroporid-Coral-Dch-AcrossPuerta-de-Tierra-Coral-Reefs-Second-Email-to-Lisamarie-Carrubba-March-3-2015, https://
www.scribd.com/doc/280761822/March-5-2015-Preliminary-Determination-of-Acroporid-CoralDch-Across-Puerta-de-Tierra-Coral-Reefs-Email-Response-From-Lisamarie-Carrubba-Noaa
!64. Roberts, C.M. 1997. Connectivity and management of Caribbean coral reefs. Science
!65. 278:1454-1456
Rogers, C. 1990. Responses of coral reefs and reef organisms to sedimentation. Marine Ecology
Series 62: Pages 185-202.
!66. Progress
Sale, P. 2008. Management of coral reefs: Where we have gone wrong and what we can do about
Pollution Bulletin 5: pages 805-809.
!67. it.SiteMarine
visit and photo log, February 19, 2015. Access via CORALations' photo album link, with
coralations.phanfare.com/6830542
!68. Site visit and photo log, February 22, 2015. Access via CORALations' photo album link, with
!69. Site visit and photo log, September 5, 2015. Access via CORALations' photo album link, with
!
coralations.phanfare.com/7008762 69.1:http://coralations.phanfare.com/
7008762#imageID=246030845
70. Tides, March 3, 2015: https://es.scribd.com/doc/277005612/TIDE-San-Juan-Puerto-Rico-TideChart-March-3-2015
38
71. UNEP Caribbean Environmental Program - Erosion and Sedimentation, http://
www.cep.unep.org/publications-and-resources/marine-and-coastal-issues-links/sedimentationand-erosion
72. USGS Scientific Investigations Report 2012-5185 US Dept of Interior, USGS- Flux of Nitrogen,
Phosphorus, and suspended Sediment from the susquehanna River Basin to the Chesapeake Bay
During Tropical Storm Lee, Sept 2011, as an Indicator of the Effects of Reservoir Sedimentation
on Water Quality.
73. Van Houtan, K., Celia M. Smith, Meghan L. Dailer and Migiwa Kawachi, 2014 Eutrophication
and the dietary promotion of sea turtle tumors, PeerJ. DOI: 10.7717/peerj.602
74. Verification from the Corps, NWP-13-SAJ-2014-00784, Sept 18, 2004: https://www.scribd.com/
doc/272390514/Corps-Permit-DTOP-2015-03-09-111415-4
75. Ziegler, A., Sutherland, R. and T. Giambelluca. 2001. Interstorm surface preparation and
sediment detachment by vehicle traffic on unpaved mountain roads. Earth Surface Processes and
landforms pages 26: 235-250.WF
76. ZMT - description of Puerto Ricos delineation of the Maritime Terrestrial Zone or ZMT as its
known by its Spanish acronym. https://www.scribd.com/doc/280636336/ZMT-Puerto-RicoGraphic.
77. ZMT - Distance of larger common plan of development along the Puerta de Tierra coastline:
https://www.scribd.com/doc/278913454/Paseo-Lineal-Length-Screen-Shot-2015-09-06at-7-41-11-AM
78. The sign demarcating landslide was eventually found 150m to the east of the project site:http://
39

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P. O.

Ms. Judith Enck

Mr. Reid Nelson

! Hon. Carmen R. Guerrero Prez

Secretaria, and Ernesto Diaz, CZMP

These construction projects have managed to bypass meaningful public participation.

We are providing this analysis to jurisdictional authorities requesting that agencies

This Google Earth image

!Both AFI and Omega reply N/A to the questions:

!Both AFI and Omega reply NO to the question:

Is your project/site located on a property of religious or cultural significance to an Indian tribe?!

to us because it is dated 2012. (26)

Cement was spilling down the slope from

ANALYSIS OF the Corps FILE - Abuse of Jurisdictional Discretion

Meaningful Public Participation assumed through multiple processes

CONDITIONS VIOLATION NWP- 13(a)

CONDITIONS VIOLATION NWP-13 (c)

Special Condition 4b of the verification issued by the Corps includes recommendations to

!Coastal Zone Management Program Compliance

!This Landslide Project is also the Paseo Lineal Project

Mary Ann Lucking

Sonia Villaverde, Ph.D

Francisco Lpez Mjica

Nelson Perez Espinosa

Ricardo Laureano de Angel

Coalicin Restauracin Ecosistemas Santurcinos (CRES)

Doris Angler Morales

Carmen Alicia Morales, Ph.D

Freddy Velez Garcia

Ramn Olivencia, Esq.

Bibiana Maria Hernandez Suarez

Janice Petrovich EdD

Autoridad para el Financiamiento de la Infrastructura

1. Arutchelvi, J.,(et. al ) 2008. Biodegradation of Polyethylene and polypropylene.

5. Categorical Exclusion 2011-DEC-01585, 9 MAR 2011, Pg 11 of Link A - Joint Application

7. Complaint to DRNA from area organizations regarding coastal construction concerns

10. Corps email withdrawing Sect 7 request from NOAA.

18. EPA Storm water runoff Best Management Practices (BMPs):https://www.scribd.com/doc/

23. Historic Patrimony Reference ACHP: http://www.achp.gov/docs/NHPA%20in%20Title

30. Melendez,.Sharon link to archeological evaluation: https://www.scribd.com/doc/280714907/

33. NOAA protocol Section 7 Acroporids https://es.scribd.com/doc/272756445/Noaa-Section-7Acroporids!

34. NOAA threats to coral reef from sedimentation: www.coralreef.noaa.gov/threats/pollution.

50. Polypropylene erosion control matting causes environmental problems.: http://

56. Rainfall data, March 2015: https://es.scribd.com/doc/277005607/Weather-History-March-1March-7-San-Juan-PR-Weather-Underground!

70. Tides, March 3, 2015: https://es.scribd.com/doc/277005612/TIDE-San-Juan-Puerto-Rico-TideChart-March-3-2015

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