Karsten Rist, 12/19/02
The History of Old Cutler Bay Development.
In July of 1987 developer Raul Planas filed a dredge and fill application for a large golf course development east of Old Cutler Road and south of the Burgerking headquarters building. The project, called old Cutler Bay Estates, included plans for a Jack Nicklaus designed golf course and proposed to destroy 197 acres of jurisdictional wetlands adjacent to Biscayne National Park. The Tropical Audubon Society together with all of the other conservation organizations in Dade county opposed the project because of its massive impact on mangrove wetlands on the edge of Biscayne Bay. The bay is part of Biscayne National Park and an Outstanding Florida Water.
On May 10, 1989, the Department of Environmental Regulation (now DEP) rejected the permit application after the Miami Herald published a report detailing intense lobbying for the permits and the massive use of political influence to manipulate the permitting process. The developer responded by requesting an administrative hearing on the matter. Tropical Audubon filed a petition to intervene in support of DER.
In the meantime the central issue of reasonable wetland protection had gained much crisper definition when an EPA biologist (Eric Hughes) and two biologists from the Corps of Engineers (Chuck Schneppel) inspected the site of the proposed development and flagged a “development line” which separated the viable, productive mangrove wetlands to the east from the degraded, Brazilian Pepper covered wetlands to the west. Regional Administrator Greer C. Tidwell (EPA Atlanta) wrote Colonel Herndon in the Jacksonville office of the Corps of Engineers: ”I feel that filling waterward of our “development line” would result in unacceptable adverse environmental impacts and would be contrary to the section 404(b)(1) Guidelines.” On a field trip to Old Cutler Bay Estates members of the Tropical Audubon Society saw the red flags which delineated the development line and resolved to focus their efforts on its defense. The development line appeared to be a practical, fair and reasonable answer to the complex question of wetland protection.
In August of 1989 Raul Planas filed a modified plan for his proposed development. The new plans reduced the impact on wetlands east of the development line to about 21 acres of mangrove. Relieved at the now much reduced impact, DER issued its permit despite the objections of the Tropical Audubon Society and the entire environmental community of Dade County.
There were numerous meetings and consultations between the developer and the Corps of Engineers, the EPA, the National Marine Fisheries Service and the Fish and Wildlife Service during the remainder of the year 1989. The developer agreed to reduce the impact on wetlands east of the development line to what he claimed were only 11.5 acres. By the end of 1989 the EPA felt that a great deal of progress had been made and that further resistance would not be cost effective.
There appeared to be a significant discrepancy between the remaining area east of the development line as depicted on the developer’s maps and the same area as shown on maps in the possession of Tropical Audubon. In January of 1990 two board members of Tropical Audubon (Kevin Sarsfield and Karsten Rist) did a rough survey of two points of the development line and identified what appeared to be a significant misrepresentation of the line on the developer’s maps. Tropical Audubon decided to challenge the depiction of the EPA line on the maps of the developer’s engineering firm, Post, Buckley, Schuh and Jernigan. TAS’ findings were submitted to the EPA on January 9, 1990. The result was yet another review of the project. The maps were corrected. The EPA, stung by the developer’s deception, reaffirmed its original opposition to all development east of the development line.
In June of 1990 the Corps sent its notice of intent to issue the permit to the Atlanta office of the EPA. Tropical Audubon coordinated a letter writing campaign covering its own membership, numerous interested citizens and other environmental organizations in Dade County. The EPA requested a higher level review of the permit decision in Washington, a process called “elevation“. This review resulted in a determination that the project purpose (to construct an upscale, residential, championship, Jack Nicklaus designed golf course community in south Dade County) had been defined too narrowly. The permit decision was returned to Jacksonville.
On November 8, 1990 Colonel Malson of the Corps of Engineers in Jacksonville issued a press release announcing that he was prepared to issue the permit. The developer had agreed to reduce the impact on wetlands east of the development line to eight acres. It is noteworthy that the project had now such a high profile that a news release appeared appropriate. The controversy over the Old Cutler bay wetlands had been the subject of news reports, comments and editorials in the Miami Herald more than twenty times.
Tropical Audubon, supported by the entire conservation community of Dade county, made every effort to urge the EPA to veto the permit. The use of its veto power by the EPA is rare. In the then 18-year history of the section 404 wetlands protection program, the EPA had vetoed only eleven projects. On December 3, 1990, Greer C. Tidwell, regional administrator of the EPA in Atlanta, informed the Corps of Engineers that the EPA was ready to initiate veto proceedings. On December 15, 1990, Raul Planas announced that he would redesign the project. He did. The EPA reviewed the new design and determined that it stayed west of the development line. The Corps issued the permit for the redesigned project on December 31, 1990.
Old Cutler Bay Development Corporation went bankrupt in May, 1992. In May of 1993 NEXT Development Corporation (Manny Mato) acquired rights to the property. The engineers were CCL consultants (David Ettman). They applied for a new permit (#198800576 (IP-LS)) on November 29, 1995. In the section Work and Purpose the permit application states: “The applicant proposes to grub and demuck that portion of the site located landward of the Environmental Protection Agency’s (EPA) established construction control line………….”.
Permit 198800576 (IP-DEB) was extended to 2007 on January 14, 2002. The applicant for the permit extension was Craven, Thompson and Associates, Incorporated acting for Shoma Development Corporation. The drawing attachment #3 in the 2002 permit is identical to the drawing on page 2 of 18 in the 1995 application by Old Cutler Estates, Ltd.. The significance of this observation is that the third permit in no way extended the fill line to land east of the EPA line.
In the summer of 2002 land clearing, demucking and fill operations began on the property. Tropical Audubon (TAS) was alerted to what appeared to be wetland destruction east of the EPA line. In order to establish the location of the EPA line TAS filed a request under the Freedom of Information Act with the EPA for a copy of the map which became the basis of the 12/31/1990 permit. The EPA was unable to produce this map but furnished copies of an aerial photograph dated 01/27/1988, which has the EPA line marked on it (EPA aerial). A Freedom of Information Act request to the Corps of Engineers for a map, survey data or a legal description of the fill line in the December, 1990 permit, was submitted on October 22, 2002. This request produced no information relevant to the 2002 permit.
A scaled application of the EPA aerial to a current Craven, Thompson map showing the “Projected limit of fill pad” indicates that Shoma Homes is filling about seven acres of wetlands east of the EPA line. Application of the measurements by Sarsfield and Rist shows the EPA line to be about 185 ft west of the Shoma Homes fill line. This information was submitted to DERM (Department of Environmental Resources Management of Miami-Dade County) by TAS on 10/04/2002 with the request not to grant an extension of the current DERM fill permit #CC87-166B. On 12/09/2002 DERM wrote Shoma Development Corporation: “Given the ongoing compliance problems, which are resulting in continuing unauthorized impacts to mangrove wetlands, the provisional extension period is terminated. In order to continue work in wetlands previously authorized by Permit No. CC87-166B, it will be necessary for you to submit a new complete application. Additionally, you must cease and desist from all further work in wetlands on site until the extent of unauthorized impacts can be further defined.” An appeal by Shoma Homes to the Environmental Quality Control Board (EQCB) was denied at the end of a hearing on 01/09/03. A second appeal by Shoma Homes to the EQCB for a variance (the Old Cutler Bay development does not meet County guidelines for development in wetlands and never did) was denied on February 13, 2003.
The Corps received a copy of the 10/04/2002 letter from TAS to DERM. The Corps responded to this letter on 12/06/2002. In its response the Corps agrees with TAS that “two or three acres” of mangrove wetlands were impacted “which may have conflicted” with the EPA line. The Corps further claims that this work is in substantial compliance with the current permit.