Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 1 of 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. BISCAYNE BAY WATERKEEPER, INC., a Florida not-for-profit corporation, DAN KIPNIS, a Miami-Dade County resident, MIAMI-DADE REEF GUARD ASSOCIATION, a Florida not-for-profit corporation, and TROPICAL AUDUBON SOCIETY, a Florida not-for-profit corporation, v. Plaintiffs/Petitioners, UNITED STATES ARMY CORPS OF ENGINEERS, Defendant/Respondent. / COMPLAINT FOR DECLARATORY AND PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF AND PETITION FOR ENFORCEMENT 1. This is an action to stop the ongoing destruction of endangered species and their designated critical habitat by the United States Army Corps of Engineers ( COE ) as it dredges the Miami Harbor channel. More specifically, this is an action for declaratory and injunctive relief under the Endangered Species Act, ( ESA ), 16 U.S.C. 1531 et seq., and for declaratory relief, injunctive relief, civil penalties, and permit revocation under Section 120.69, Florida Statutes. 1
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 2 of 28 Jurisdiction 2. This Court has jurisdiction over this case under 28 U.S.C. 1331 (federal question), 2201 (declaratory judgment), and 2202 (injunctive relief), and under 16 U.S.C. 1540 (action arising under citizen suit provision of the ESA). In addition, this Court has jurisdiction over the state law claim under 28 U.S.C. 1367(a) (supplemental jurisdiction). 3. Plaintiffs have provided advance notice of their intent to file this lawsuit as required by ESA Section 11(g), 16 U.S.C. 1540(g), and Section 120.69(1)(b), Florida Statutes. By letter dated July 16, 2014, the Plaintiffs gave notice to, among others, the United States Department of Commerce, the Florida Department of Environmental Protection ( FDEP ), the COE and its contractor, Great Lakes Dredge and Dock Company, of violations of the ESA and of the permit issued to the COE by the FDEP and of the Plaintiffs intention to bring a citizens suit to address the violations. (See Exhibit 1.) The notice letter was also delivered to all other parties required under the ESA and Florida law. The Parties 4. Biscayne Bay Waterkeeper, Inc. ( Waterkeeper ) is a Florida non-profit corporation. The mission of Waterkeeper is to defend, protect, and preserve the aquatic integrity of Biscayne Bay and its surrounding waters through citizen involvement and community action. As its advocate, Waterkeeper seeks to eliminate or mitigate threats to the Bay. Waterkeeper has an interest in preserving and protecting the health and aesthetic qualities of Biscayne Bay, the Biscayne Bay Aquatic Preserve, the Bay s marine life and the nearby coral reefs. It encourages and inspires citizens to reclaim and protect the natural and civic heritage of the Bay as the biological, economic and cultural heart of Miami-Dade County. Waterkeeper is a member of the 2
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 3 of 28 Waterkeeper Alliance, an international environmental organization uniting more than 190 Waterkeeper affiliates across the globe and has approximately 1,000 member/supporters, a substantial number of whom work, recreate, use, and enjoy Biscayne Bay, the Biscayne Bay Aquatic Preserve, and the marine resources that inhabit the Bay and the nearby coral reefs. More particularly, a substantial number of its members boat, fish, swim, observe wildlife and enjoy the aesthetic qualities of the Biscayne Bay Aquatic Preserve, including the area around the Miami Harbor and the nearby coral reefs. By killing and harming corals and seagrass, degrading coral habitat, and impairing water quality as alleged herein the interests of Waterkeeper and its members/supporters to boat, fish, swim, observe wildlife and enjoy the Aquatic Preserve and nearby coral reefs are directly and adversely affected. 5. Captain Dan Kipnis was a licensed Miami charter boat fishing captain for 35 years and is an advocate for environmental protection and conservation. Captain Kipnis currently serves as Chair of the Miami Beach Marine Authority and as a member of the Biscayne Bay Regional Restoration and Coordination Team. He previously served on the Miami Dade County Climate Change Task Force wherein he chaired the Economic, Social and Health Committee. Captain Kipnis also served on the Miami River Review Committee, City of Miami Waterfront Board, and the State of Florida Marine Fisheries Commission. Captain Kipnis personally uses and recreates in Biscayne Bay, including the areas in and around Miami Harbor and the nearby coral reefs. His personal recreational use of Biscayne Bay Aquatic Preserve includes boating, fishing, swimming, and wildlife observation. He also enjoys the aesthetic quality of Biscayne Bay Aquatic Preserve in and around the Miami Harbor. By killing and harming corals and seagrass, degrading coral habitat, and impairing water quality as alleged herein the interests of 3
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 4 of 28 Captain Kipnis to boat, fish, swim, observe wildlife and enjoy the Aquatic Preserve and nearby coral reefs are directly and adversely affected. 6. Miami-Dade Reef Guard Association ( Reefguard ) is a Florida not-for-profit corporation. Its mission is the protection of natural reefs off the coast of Miami-Dade County and to provide collective assistance in the promotion, funding and organizing of resources for the installation and maintenance of mooring buoys on the reefs adjacent to Miami-Dade County. Reefguard promotes and supports both artificial reef deployment and natural reef conservation in the adjacent sea areas. As an advocate for protection and conservation of the County s reefs, Reefguard seeks to mitigate threats to the reefs. Annually, it sells medallions to promote and involve the community while promoting discussion on reef matters at large. Reefguard has an interest in preserving and protecting the health and aesthetic qualities of Miami s reefs and marine life. It encourages and inspires citizens to boat and scuba dive responsibly. Reefguard also conducts and sponsors fish survey events to further involve the community in their resource. Reefguard has approximately 500 members/supporters, a substantial number of whom work, recreate, use, and enjoy Miami s reefs, both natural and artificial. More particularly, a substantial number of its members boat, snorkel, swim, scuba dive and observe marine life at or near the Miami Harbor channel. By killing and harming corals and seagrass, degrading coral habitat, and impairing water quality as alleged herein the interests of Reefguard and its members/supporters to boat, fish, swim, observe wildlife and enjoy the Aquatic Preserve and nearby coral reefs are directly and adversely affected. 7. Established in 1947, Tropical Audubon is a chapter of Audubon of Florida and the National Audubon Society. Its purpose is (1) to protect natural resources and promote wise 4
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 5 of 28 stewardship of those resources, including native plants, animals and their habitats; (2) promote through education an understanding and appreciation of nature, the environment, and ecological relationships; and (3) enjoy with its members and others the study and protection of nature. Tropical Audubon has been actively advocating on behalf of Biscayne Bay for more than 50 years and has an interest in preserving and protecting the health and aesthetic qualities of Biscayne Bay, the Biscayne Bay Aquatic Preserve, the Bay s marine life and the nearby coral reefs, not only for the benefit of its members and future generations but also for bird populations that depend on the Bay and its varied habitats as a food source and nesting grounds. Tropical Audubon has approximately 4,000 members/supporters, a substantial number of whom work, recreate, use, and enjoy Biscayne Bay, the Biscayne Bay Aquatic Preserve, and the marine resources which inhabit the Bay and the nearby coral reefs. More particularly, a substantial number of its members boat, fish, swim, observe wildlife and enjoy the aesthetic qualities of the Biscayne Bay Aquatic Preserve, including the area around the Miami Harbor and the nearby coral reefs. By killing and harming corals and seagrass, degrading coral habitat, and impairing water quality as alleged herein the interests of Tropical Audubon and its members/supporters to boat, fish, swim, observe wildlife and enjoy the Aquatic Preserve and nearby coral reefs are directly and adversely affected. 8. The COE is a person within the meaning of ESA Sections 3(13) and 11(g), 16 U.S.C. 1532(13), 1540(g). 5
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 6 of 28 Statutory Background A. The Endangered Species Act 9. Congress enacted the ESA to provide a program for the conservation of [] endangered species and threatened species. 16 U.S.C. 1531(b). 10. The ESA vests primary responsibility for administering and enforcing the statute with the Secretaries of Commerce and the Interior, who have delegated this responsibility to National Marine Fisheries Services ( NMFS ) and the U.S. Fish and Wildlife Service ( FWS ) respectively. 50 C.F.R. 402.01(b). NMFS has primary responsibility for the listed species and their habitat at issue in this action. 11. Section 9 of the ESA prohibits the take of ESA listed species. 16 U.S.C. 1538(a). The statute defines take as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Id. 1532(19). NMFS defines harm, within the meaning of take, as including significant habitat modification or degradation which actually kills or injures wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering. 50 C.F.R. 222.102. Harass, within the meaning of take, is defined as an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. 15 C.F.R. 17.3. 6
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 7 of 28 12. The ESA prohibits the direct taking of members of a listed species, as well as the acts of third parties, such as governmental agencies, whose acts cause such a taking to occur. Id. 1538(g). 13. NMFS has extended the no take protections of ESA Section 9, 16 U.S.C. 1538, to Acropora cervicornis ( staghorn coral ) by regulation. 50 C.F.R. 223.208. 14. The ESA requires that [f]ederal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species. 16 U.S.C. 1536(a)(1). The statute defines conservation to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. Id. 1532(3). 15. In order to fulfill the purposes of the ESA, Section 7(a)(2) of the statute requires each federal agency, in consultation with NMFS or FWS, to insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species [designated critical habitat]. 16 U.S.C. 1536(a)(2). Section 7(a)(2) imposes two obligations upon federal agencies. The first is procedural and requires that agencies consult with the NMFS or FWS to determine the effects of their actions on endangered or threatened species and their critical habitat. Id. 1536(b). The second is substantive and requires that agencies insure that their actions not jeopardize endangered or threatened species or their critical habitat. Id. 1536(a)(2). 7
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 8 of 28 16. If the agency proposing the action determines that it may affect a listed species, the agency must engage in formal consultation with NMFS or FWS to meet the ESA s substantive no jeopardy mandate. 16 U.S.C. 1536(b); 50 C.F.R. 402.14. 17. Unless the Secretary takes action to extend the period, consultation must be completed within 90 days from the date of initiation. 16 U.S.C. 1536(b)(1)(A)-(B). 18. Formal consultation results in a biological opinion in which the consulting agency must make its determination as to whether the action is likely to jeopardize the continued existence of a listed species. 16 U.S.C. 1536(b)(3)-(4). NMFS defines the term jeopardize as an action that reasonably would be expected... to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 50 C.F.R. 402.02. 19. NMFS must base its determination of whether an activity is likely to jeopardize the continued existence of a species solely on the best scientific and commercial data available. 16 U.S.C. 1536(a)(2). 20. If NMFS determines that the action is likely to cause jeopardy to a species, the biological opinion must outline reasonable and prudent alternatives to the action, if any exist, which [the agency] believes would not violate [Section 7(a)(2)]. 16 U.S.C. 1536(b)(3)(A); 50 C.F. R. 402.14(h)(3). 21. Conversely, pursuant to Section 7(b)(4) of the ESA, a biological opinion that concludes that the agency action is not likely to jeopardize the continued existence of a listed species must include an incidental take statement, which specifies the impact of any allowable takes of individual members of the species, provides reasonable and prudent measures necessary 8
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 9 of 28 to minimize the impact of those takes, and sets forth terms and conditions that must be followed to implement such measures. 16 U.S.C. 1536(b)(4); 50 C.F. R. 402.14(i)(1), (3). Section 7(o)(2) exempts takings in compliance with these terms and conditions from the prohibition on takings in Section 9 of the ESA. 16 U.S.C. 1536(o)(2). 22. After the issuance of a final biological opinion and where discretionary Federal involvement or control over the action has been retained or is authorized by law, the agency must reinitiate formal consultation if, inter alia: the amount or extent of taking specified in the incidental take statement is exceeded ; new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered ; the identified action is subsequently modified in a manner that causes an effect to the listed species... that was not considered in the biological opinion; or if a new species is listed or critical habitat designated that may be affected by the identified action. 50 C.F.R. 402.12. 23. During the consultation process, including consultations reinitiated under 50 C.F.R. 402.12, the ESA prohibits the action agency (in this case the COE) from mak[ing] any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2). ESA Section 7(d), 16 U.S.C. 1536(d). The purpose of Section 7(d) is to preserve the status quo during consultation and to 9
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 10 of 28 prevent agencies, such as the COE, from steam rolling projects while the consultation is in progress. B. Section 120.69, Florida Statutes and Other Applicable Florida Statutes 24. Section 120.69, Florida Statutes, provides a means by which agency action may be enforced. Among other things, the statute states that a petition for enforcement of any agency action may be filed by any substantially interested person who is a resident of the state provided that no such action may be commenced prior to 60 days after the petitioner has given notice of the violation to [FDEP, the COE and the Florida Attorney General] and if an agency has filed, and is diligently prosecuting, a petition for enforcement. Section 120.69(1)(b), Fla. Stat. Citizens may seek declaratory relief; temporary or permanent equitable relief; any fine, forfeiture, penalty, or other remedy provided by statute; any combination of the foregoing; or in the absence of any other specific statutory authority, a fine not to exceed $1,000. Section 120.69(2), Fla. Stat. 25. Section 373.430(1)(b), Florida Statutes, states that: It shall be a violation of this part, and it shall be prohibited for any person: to fail to obtain any permit required by this part or by rule or regulation adopted thereto, or to violate or fail to comply with any rule, regulation, order, or permit adopted or issued by a water management district, the department, or local government pursuant to their lawful authority under this part. 26. Section 373.430(2), Florida Statutes, states that: Whoever commits a violation specified in subsection (1) is liable for damage caused and for civil penalties as provided in s. 373.129. 27. Section 403.161(1)(b), Florida Statutes, states that: It shall be a violation of this chapter, and it shall be prohibited for any person: to fail to obtain any permit required by this chapter 10
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 11 of 28 or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority. 28. Section 403.141(1), Florida Statutes, states that: Whoever commits a violation specified in s. 403.161(1) is liable to the state for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the state and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including animal, plant, and aquatic life, of the state to their former condition, and furthermore is subject to the judicial imposition of a civil penalty for each offense in an amount of not more than $10,000 per offense. 29. Section 403.087(7), Florida Statutes, states that a permit issued pursuant to this section does not become a vested right in the permittee. The department may revoke any permit issued by it if it finds that the permit holder has: (a) Submitted false or inaccurate information in the application for the permit; (b) Violated law, department orders, rules, or conditions which directly relate to the permit; (c) Failed to submit operational reports or other information required by department rule which directly relate to the permit and has refused to correct or cure such violations when requested to do so; or (d) Refused lawful inspection under s. 403.091 at the facility authorized by the permit. 30. The 2012 Consolidated Environmental Resource Permit ( ERP ) at issue in this case, which is described in paragraph 33 below, is agency action, more than 60 days have passed since the Plaintiffs/Petitioners provided the statutory required notice, and FDEP has not filed a petition for enforcement with respect to the COE s failure to comply with the requirements of the ERP as set forth in this Complaint and Petition for Enforcement. 11
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 12 of 28 Factual Background A. The Deep Dredge Permit 31. On April 12, 2011, the COE applied to the FDEP for a permit to deepen and widen the Miami Harbor channel. The Miami Harbor channel includes Fisherman s Channel on the south side of Dodge Island, Government Cut, and the Outer Entrance Channel as depicted on Exhibit 2. Following negotiations, FDEP issued the COE a proposed permit on November 10, 2011. 32. Waterkeeper, Tropical Audubon, and Captain Kipnis filed a petition with FDEP challenging the proposed permit on November 28, 2011, and resolved the challenge through mediation with the COE, FDEP and Miami-Dade County. As a product of the mediation, the parties, including the COE, agreed to the terms of a new, final permit that was issued on May 22, 2012. A copy of the Final ERP is attached as Exhibit 3. The ERP authorizes dredging five to six million cubic yards of material from the Miami Harbor channel. Channel depths will be increased by eight feet or more and in some areas the channel will be widened by as much as three-hundred feet. Six-hundred (600) days of confined blasting will be needed to loosen the rock to accommodate the dredging. The dredging has or will occur on the ocean side of the Government Cut jetties extending east approximately 2.3 miles to the mouth of the channel and inside, to the west of the jetties, in the Biscayne Bay Aquatic Preserve. 33. The Miami Harbor channels are within or adjacent to the Biscayne Bay Aquatic Preserve (designated by the State for special protection as an Outstanding Florida Water ) and the Bill Sadowski Critical Wildlife Area. The area has been designated as Essential Manatee 12
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 13 of 28 Habitat by Miami-Dade County and Essential Fish Habitat-Habitat of Particular Concern by the South Atlantic Fishery Management Council. B. ESA Listed Species and Critical Habitat Designation 34. Over one dozen threatened, endangered, or protected marine species are known to inhabit or migrate through the project action area including manatees, bottlenose dolphin, sea turtles, and whales. 35. ESA listed staghorn coral inhabits large portions of the project action area. See 79 FR 53851 (Sept. 10, 2014)(NMFS final rule listing staghorn coral as threatened under the ESA). Moreover, the NMFS has designated much of the project action area east of Government Cut as critical habitat for staghorn coral. See 50 C.F.R. 226.216 (designating the area surrounding the Miami Harbor channel as critical habitat for staghorn coral). Under the ESA, critical habitat is defined as those geographic areas on which are found the physical and biological features essential to the survival of the species and which may require special protection. ESA Section 3(5), 16 U.S.C. 1532(5). 36. In addition to staghorn coral, at least one other newly ESA listed threatened coral, Orbicella faveolata, has been documented to populate the reefs adjacent to the Miami Harbor channel. See 79 FR 53851 (Sept. 10, 2014)(NMFS final rule listing O. faveolata as threatened under the ESA). The COE is aware of at least four colonies of this coral is in the project area. C. The 2011 Biological Opinion 37. The NMFS originally issued an ESA Section 7 Biological Opinion ( BiOp ) in connection with this project in 2003. The 2003 BiOp focused on impacts to Johnson s seagrass, a ESA listed threatened species, and its designated critical habitat adjacent to the Miami Harbor 13
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 14 of 28 channel. In 2011 the COE reinitiated consultation with NMFS after staghorn coral was proposed for ESA listing. As part of the consultation the COE provided NMFS with a COE funded survey identifying only 31 colonies of staghorn coral in the project area. At the conclusion of the consultation a new BiOp was issued on September 8, 2011. A copy of the 2011 BiOp is attached as Exhibit 4. 38. The 2011 BiOp concluded, among other things, that the dredging is likely to adversely affect staghorn coral and its designated critical habitat but not jeopardize its continued existence or permanently adversely modify its critical habitat. This conclusion was based, in part, on the NMFS determination (based on information supplied by the COE) that sediment impacts would temporary, insignificant and monitored consistent with a NMFS approved monitoring program. 39. Anticipating, however, that all 31 colonies of staghorn would be destroyed by the dredging, NMFS directed the COE to relocate each colony to a staghorn nursery as a Reasonable and Prudent Measure under ESA Section 7(b)(4). (ESA Section 7(b)(4) directs NMFS to identify steps the action agency, in this case the COE, must implement to minimize the impact of the anticipated incidental take authorized by the BiOp.) ( Incidental take refers to takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant. 50 C.F.R. 402.02.) In addition, NMFS directed the COE to establish an environmental monitoring program and best management practices shall be established in order to determine whether technologies employed to reduce sedimentation and turbidity during all phases of construction are successful. These Reasonable and Prudent 14
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 15 of 28 Measures were to be implemented pursuant to the Terms and Conditions identified in the 2011 BiOp. 40. The 2011 BiOp authorized the incidental take of only the 31 colonies of staghorn identified in the COE funded survey and then only if in compliance with the terms of the 2011 BiOp. The terms of the 2011 BiOp include the obligation to monitor the impact of the incidental take and report on the progress of the action to NMFS, to develop an transplantation plan in coordination with NMFS prior to commencing construction, to provide NMFS with all data collected during monitoring events and report to NMFS when thresholds are exceeded and corrective actions taken, to develop in coordination with NMFS a sedimentation and turbidity monitoring plan prior to commencement of construction, and implement best management practices to minimize turbidity and sedimentation. D. Recent Events 41. In October 2013, prior to the commencement of dredging, the COE discovered the existence of hundreds of additional colonies of staghorn coral in the project area. A total of 243 colonies were found before the COE contractor simply stopped counting the additional colonies. This discovery presented several problems for the COE. First, the number of newly-found colonies greatly exceeded the 31 colonies upon which the 2011 BiOp was based and covered by the 2011 BiOp s Incidental Take Authorization. Also, the COE s contract specifications required the relocation of all staghorn coral colonies within 150 meters of the channel and finding that many colonies was unexpected and not budgeted. Finally, the discovery had the potential to delay commencement of the dredging which was scheduled to begin within a few weeks. 15
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 16 of 28 42. Based on the discovery of the new staghorn coral colonies that were outside the scope of the 2011 BiOp and ERP the COE sent NMFS an email on October 21, 2013, purportedly for the purpose of reinitiating consultation with NMFS. Concerned with costs and timing, the COE proposed NMFS authorize the relocation of up to 40 staghorn coral colonies found within 50 feet of the channel at the middle reef and the COE proposed monitoring the balance of the staghorn corals. The COE made this proposal to NMFS in the October 21 email stressing that this approach would allow the dredging to go forward without delay. 43. NMFS did not approve the COE s October 21, 2013, email proposal but instead told the COE that a new, revised BiOp would be required. Documents produced by the COE under the Freedom of Information Act indicate that the COE went forward with the relocation of 38 colonies of staghorn coral (without formal NMFS approval), failed to implement the proposed monitoring plan for the balance of the colonies, and had no further consultation discussions with NMFS for over five months, from October 24, 2013, until March 28, 2014. During this time, the COE steam rolled the dredging irreversibly harming staghorn corals and their critical habitat. 44. Notwithstanding the lack of NMFS approval, the COE directed its contractor to relocate 38 staghorn coral colonies found within 100 feet of a portion of the channel and these 38 staghorn coral colonies were taken and relocated in November 2013. 45. Dredging started November 20, 2013, and is expected to continue for another year. 46. Almost immediately upon commencement of dredging monitored corals near the channel began exhibiting signs of stress due to dredge related sedimentation. Plumes of turbid water extending 1,500 meters in length were observed blanketing the hardbottom reef areas. By 16
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 17 of 28 week 10, the COE was reporting significant coral sediment stress events to FDEP. (Specific Condition 32 of the ERP defines sediment stress as the build-up of sediment significantly above the level found at the control or reference stations sufficient to cause coral bleaching, excessive mucus production, degradation or death. The ERP requires the reporting of significant events, including sediment stress events, within 24 hours.) 47. In response to reports of sediment stress and the large turbidity plumes, in early July, 2014, the Miami-Dade County Division of Environmental Resources Management ( DERM ) sent a team of biologists to dive the channel and evaluate the condition of the corals and hardbottom habitat. They found areas of the reef heavily covered with dredge related sediments and dead and dying corals. The DERM inspection report is attached as Exhibit 5. 48. Later that month and in response to the DERM report and the complaints of the Plaintiffs/Petitioners, FDEP sent a team of scientists to inspect the corals. They found: "The observed sediment cover has had a profound effect on the benthos. There were no scleractinian or octocoral recruits or juveniles less than 3 cm in maximum dimension observed along the assessment transects at the Inner and Middle Reefs; other small benthic organisms of the same size were also buried under the sediments. The survival of impacted scleractinian corals and octocorals in size class < 10 cm is highly unlikely; according to our observation, the sediment layer has resulted in anoxic conditions. Larger size classes of scleractinian corals, octocorals, and sponges were also adversely affected by project-related sedimentation, and impacts to these larger organisms is considerable. More than half of the larger scleractinian corals (> 10 cm in max dimension) observed had partial mortality caused by sediment accumulation, which can increase diseases in corals through infections in the affected areas. Erected sponges will lose their attachment because of the burial at the base and the death of tissue, and sponges of rope shape may have the same fate." A copy of the FDEP inspection report is attached as Exhibit 6. 17
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 18 of 28 49. Based on the July inspection results, FDEP issued the COE a Warning Letter dated August 18, 2014, wherein FDEP alleged significant impacts to hardbottom beyond those that were permitted were observed indicating possible violations of Chapter 373 and Chapter 403, Florida Statutes. In the Warning Letter FDEP asked that the COE undertake an assessment of the full geographic extent of the sedimentation. The COE refused. FDEP subsequently asked the COE to enter into a consent order to resolve the violations. The COE again refused. 50. In response to the FDEP inspection results and Warning Letter, the DERM inspection report, and the complaints of the Plaintiffs/Petitioners, NMFS asked the COE to begin a rapid monitoring program of 40-50 of the additionally-identified staghorn colonies between 100 and 450 feet from the edge of the channel. The written object of the monitoring program was to provide reasonable assurance to NMFS and [COE] that the effects of dredging on Acropora cervircornis in the project footprint [is] similar to those identified in the biological opinion. The surveys however did not provide the sought after assurance. To the contrary, the early survey results revealed to NMFS the severity of the ongoing damage to the corals and their critical habitat causing NMFS to issue emergency recommendations to the COE. In its September 10, 2014, recommendation, NMFS states that it: has determined, based on monitoring reports submitted by the USACE, that there is clearly sediment impact affecting coral colonies, including ESA-listed Acropora cervicornis and possibly newly-listed corals, in the project area. There is also evidence of additional background warm temperature stress in the region. Both these factors are contributing to rapid deterioration in colony condition in the project area. Furthermore, accumulation and resuspension of sediments in the project area will continue to affect extant colonies and designated critical habitat as long as the sediments are present. Therefore, emergency relocation of living 18
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 19 of 28 staghorn colonies should be undertaken immediately and further mitigation (e.g., translocation of additional coral species, CH mitigation) considered. A copy of the NMFS September 10, 2014, Emergency Remediation Recommendations is attached as Exhibit 7. The COE refused to implement the NMFS Emergency Remediation Recommendations. 51. On September 14, 2014, the COE formally reinitiated consultation with NMFS. As part of the consultation the COE is asking to take rather than save all the staghorn corals within the project area as an incidental take. As of the date of this Complaint and Petition for Enforcement, the COE has refused to commit to implement the NMFS emergency recommendations as it continues dredging. In addition, the scope of the September 14, 2014, request for reinitiation is limited and fails to request consultation on impacts to staghorn coral critical habitat, and Johnson s seagrass critical habitat, fails to request that the definition of action area be expanded to include all areas where sedimentation has occurred, fails to identify all colonies of staghorn coral in the action area, and fails to recognize the impact of sedimentation on staghorn larvae and recruits. 52. Dredging has resulted in the additional taking of staghorn coral, larvae, recruits, and fragments outside the scope of the incidental take authorized the 2011 BiOp. Dredging has also resulted in the degradation and adverse modification of ESA designated staghorn critical habitat in a manner and to a degree not anticipated in the 2011 BiOp. This taking has occurred, is occurring and will continue to occur into the foreseeable future. Sedimentation from continued dredging will exacerbate the nature and extent of the ongoing take. 19
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 20 of 28 53. If the COE fails to implement best management practices that actually reduce the level of sedimentation, and if sedimentation is experienced in the ESA designated Johnson s seagrass critical habitat at or even close to the same level as measured on the reef, the Plaintiffs/Petitioners believe that the sedimentation will result in the degradation and adverse modification of the Johnson s seagrass critical habitat as the dredging occurs in Biscayne Bay. ESA CLAIMS FOR RELIEF First Cause of Action (Violations of Endangered Species Act Section 7(a), 16 U.S.C. 1536) 54. Plaintiffs/Petitioners hereby reallege and incorporate by reference each and every allegation set forth in paragraphs 1 through 53 of this Complaint as though fully set forth herein. exceeded. 55. The Incidental Take Authorization in the 2011 BiOp for staghorn coral has been 56. The COE failed to fully implement and comply with the Terms and Conditions detailed in the 2011 BiOp. 57. The COE failed to pursue consultation after purportedly reinitiating consultation on October 21, 2013, exceeded the 90-day period set forth in the ESA, 16 U.S.C. 1536(b), for completion of consultation, and has not justified extensions of the statutory period. 58. The COE s continued reliance on the 2011 BiOp to authorize continuation of dredging when it is aware that (a) fundamental assumptions regarding the effects of the dredging had been proven false (e.g., sedimentation was neither temporary nor insignificant ) and (2) far more that 31 colonies of staghorn coral existed in the action area, constitutes a failure to ensure that listed species are not likely to be jeopardized in violation of Section 7 of the ESA, 16 U.S.C. 1536. Such action is arbitrary, capricious, an abuse of discretion, and otherwise not in 20
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 21 of 28 accordance with law within the meaning of the Administrative Procedure Act, 5 U.S.C. 706(2), and is subject to judicial review under 16 U.S.C. 1540(g). 59. The COE s continued reliance on the 2011 BiOp as authorization to continue dredging when the Incidental Take Authorization for staghorn coral had been exceeded constitutes a failure to ensure that listed species are not likely to be jeopardized in violation of Section 7 of the ESA, 16 U.S.C. 1536. Such action is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law within the meaning of the Administrative Procedure Act, 5 U.S.C. 706(2), and is subject to judicial review under 16 U.S.C. 1540(g). 60. While acknowledging the need for formal consultation the COE is continuing the (unlawful) take of staghorn coral and is continuing to degrade its critical habitat. By consulting with NMFS at the same time it is destroying the very species which is the subject matter of the consultation the COE has violated and is continuing to violate ESA Section 7(a). More specifically, the COE s conduct constitutes both a substantive and procedural violation of ESA Section 7(a)(2) and is arbitrary, capricious an abuse of discretion and contrary to law, in violation of the APA. 61. Plaintiffs Waterkeeper, Kipnis, and Tropical Audubon seek to enforce their rights under the ESA with respect COE s work that is outside the scope of the Miami Harbor dredging project authorized by the ERP. Second Cause of Action (Violations of Endangered Species Act Section 7(d), 16 U.S.C. 1536) 62. Plaintiffs/Petitioners hereby reallege and incorporate by reference each and every allegation set forth in paragraphs 1 through 53 of this Complaint as though fully set forth herein. 21
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 22 of 28 63. The COE has violated and continues to violate Section 7(d) of the ESA by continuing dredging operations during the informal and formal consultation period, taking staghorn corals, adversely modifying ESA designated staghorn coral critical habitat, and otherwise making an irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternative measures which would not violate subsection (a)(2). 64. Plaintiffs Waterkeeper, Kipnis, and Tropical Audubon seek to enforce their rights under the ESA with respect COE s work that is outside the scope of the Miami Harbor dredging project authorized by the ERP. Third Cause of Action (Violations of Endangered Species Act Section 9, 16 U.S.C. 1538) 65. Plaintiffs/Petitioners hereby reallege and incorporate by reference each and every allegation set forth in paragraphs 1 through 53 of this Complaint as though fully set forth herein. 66. The COE has taken and is continuing to take staghorn coral in a manner inconsistent with and in excess of the Incidental Take Authorization contained within the 2011 BiOp. 67. Sedimentation from dredging is adversely modifying and/or degrading ESA designated staghorn coral critical habitat and has resulted and will continue to result in significant impairment of staghorn coral essential behavioral patterns, including reproduction. 68. Because the COE has failed to comply with the 2011 BiOp any ongoing take of listed species is not authorized under the exemption in Section 7(o)(2) of the ESA and is, therefore, prohibited under Section 9 of the ESA and 50 C.F.R. 223.206(d)(4)(A) and is 22
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 23 of 28 arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. 706(2), subject to judicial review under 16 U.S.C. 1540(g). 69. Plaintiffs/Petitioners have a well founded belief that if the COE does not implement best management practices that actually reduce the level of sedimentation, and if sedimentation is experienced in the ESA designated Johnson s seagrass critical habitat at the same level as measured on the reef, the sedimentation will result in the adverse modification of Johnson s seagrass critical habitat. 70. Plaintiffs Waterkeeper, Kipnis, and Tropical Audubon seek to enforce their rights under the ESA with respect COE s work that is outside the scope of the Miami Harbor dredging project authorized by the ERP. ESA PRAYER FOR RELIEF WHEREFORE, Plaintiffs/Petitioners respectfully request that the Court enter judgment providing the following relief: A. Declare that the COE has engaged and is continuing to engage in a take of staghorn coral in violation of ESA Section 9; B. Declare that the COE has degraded and is continuing to degrade staghorn coral critical habitat in violation of ESA Section 9; C. Declare that the COE the failed to comply with the terms, conditions and requirements of the 2011 Biological Opinion in violation of ESA Section 7(a); D. Declare that the COE by seeking consultation and simultaneously engaging in the take of staghorn coral and while degrading its critical habitat has violated and is violating ESA Section 7(a). 23
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 24 of 28 E. Declare that the COE has failed to ensure that dredging of the Miami Harbor channel is not likely to jeopardize listed species in violation of ESA Section 7(a) by continuing to rely upon the 2011 Biological Opinion and Incidental Take Statement as authorization to continue dredging (a) when the Incidental Take Authorization for staghorn coral has been exceeded and (b) when the COE has otherwise failed to comply with the requirements of the 2011 Biological Opinion; F. Declare that the COE has failed to ensure that dredging of the Miami Harbor channel is not likely to jeopardize listed species in violation of ESA Section 7(a) by continuing to rely upon the 2011 Biological Opinion when it is aware that fundamental assumptions regarding the effects of the dredging had been proven false; G. Declare that the COE has failed to ensure that dredging of the Miami Harbor channel is not likely to jeopardize listed species in violation of ESA Section 7(a) by continuing to rely upon the 2011 Biological Opinion when it is aware that the actual number of staghorn corals in the action area is at least 243 colonies whereas the Biological Opinion was based on the COE s representation that only 31 colonies of staghorn coral existed in the action area; H. Declare that the COE has made an irreversible or irretrievable commitment of resources with respect to the dredging which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) in violation of ESA Section 7(d); I. Order the COE to immediately implement the September 10, 2014, Emergency Remediation Recommendations of the National Marine Fisheries Service; 24
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 25 of 28 J. Order the COE to comply with the ESA; K. Order the COE to suspend dredging pending completion of the ongoing consultation and issuance of a new Biological Opinion; L. Order the COE to suspend dredging until it demonstrates the ability to substantially reduce or eliminate sedimentation from dredging activities; M. Order such other injunctive relief as may be appropriate, including, without limitation, a halt to dredging, until such time as the violations in this Complaint and Petition for Enforcement are remedied; N. Award to Plaintiffs/Petitioners the costs of litigation, including reasonable attorneys fees under the Endangered Species Act; and O. Grant Plaintiffs/Petitioners such other relief as the Court deems just and proper. SECTION 120.69 PETITION FOR ENFORCEMENT 71. Plaintiffs/Petitioners bring this claim in the name of and on behalf of the State of Florida. 72. Plaintiffs/Petitioners hereby reallege and incorporate by reference each and every allegation set forth in paragraphs 1 through 53 of this Complaint as though fully set forth herein. 73. Independent of their ESA rights, or in the alternative, Plaintiffs/Petitioners also seek to enforce the terms of the ERP and to compel the COE s compliance with the ERP. 74. General Condition 4 of the ERP requires the COE obtain any applicable licenses, permits, or other authorizations which may be required by federal, state, local or special district laws and regulations. 25
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 26 of 28 75. Through the acts and omissions as described herein, the COE has violated and is continuing to violate General Condition 4 of the ERP. PETITION FOR ENFORCEMENT PRAYER FOR RELIEF WHEREFORE, Plaintiffs/Petitioners respectfully request that the Court enter judgment providing the following relief: A. Declare the COE to be in violation of General Condition 4 of the ERP and order the COE to cease dredging until it comes into compliance with General Condition 4; B. Order the COE to fully delineate the geographic extent of dredge related the sedimentation, including beyond 200 meters where FDEP noted continuing impacts; C. Order the COE to identify the type and location of each listed coral within the area of sedimentation, including beyond 200 meters; D. Order the COE to undertake an assessment of the damage to natural resources, including but not limited to listed corals and the ESA designated critical habitat, caused by dredge related sedimentation; E. Access damages for the destruction of those natural resources which are outside the scope of the ERP; F. Order the COE to suspend dredging until it demonstrates the ability to substantially reduce or eliminate sedimentation from dredging activities and to allow dredging to proceed only when full compliance of the FDEP permit can be assured and continued compliance monitored closely; G. Access civil penalties for each and every day the COE has been in violation of the ERP at the maximum extent allowable under Florida law; 26
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 27 of 28 the ERP; H. Upon the COE s failure to comply with the terms of the injunction, revoke I. Award to Plaintiffs/Petitioners the costs of litigation, including reasonable attorneys fees under Section 120.69, Florida Statutes; and proper. J. Grant Plaintiffs/Petitioners such other relief as the Court deems just and DATED: October 1, 2014 Respectfully submitted, By: s/ James M. Porter James M. Porter, P.A, Fla. Bar No. 443239 9350 S. Dixie Highway, 10th Floor Miami, Florida 33156 Phone: 786-425-2299 Jim@JamesMPorterPA.com Counsel for Plaintiffs/Petitioners -and- Paul J. Schwiep, Fla. Bar No. 823244 COFFEY BURLINGTON, P.L. 2699 South Bayshore Drive, Penthouse Miami, Florida 33133 Phone: 305-858-2900 Fax: 305-858-5261 pschwiep@coffeyburlington.com Counsel for Biscayne Bay Waterkeeper -and- 27
Case 1:14-cv-23632-FAM Document 1 Entered on FLSD Docket 10/01/2014 Page 28 of 28 Gary M. Pappas, Fla. Bar No. 705853 Carlton Fields Jorden Burt, P.A. 100 SE Second Street, Suite 4200 Miami, FL 33131-2113 Phone: 305-539-7230 Fax: 305-530-0055 gpappas@cfjblaw.com Counsel for Tropical Audubon Society -and- Of Counsel: Eric Glitzenstein Meyer Glitzenstein & Crystal 1601 Connecticut Ave, NW Suite 700 Washington, DC 20009 Phone: 202-588-5206 EGlitzenstein@MeyerGlitz.com 28