A permit application process that has dragged on almost five years will have to go at least another 30 days because “how we do things” ran up against the letter of the law Monday at a hearing of the Senate Committee on Planning and Environmental Protection.
The application by the owners of Green Cay Marina for a Coastal Zone Management (CZM) permit to perform what one owner called "the routine work of maintaining a business" was heard by the committee Monday morning at the Fritz E. Lawaetz Legislative Conference Room.
The application had first been filed in July 2005 and since then has been the subject of two CZM public hearings.
But when the Senate committee sat down to review the application Monday, a report by legislative counsel Paulette Fraizer-Alexis unearthed a host of objections to the permit approved in October 2009 by CZM – some small and niggling, others that went to the very heart of the approval by CZM’s St. Croix committee.
Adding to the committee’s difficulties was the fact that none of the staff who had worked on the application for CZM and the Department of Planning and Natural Resources (DPNR) was at Monday’s hearing, so when senators asked why something was done a particular way, staff members on hand couldn’t provide any answers.
Green Cay Marina was purchased by St. Croix Financial Center Inc. in 2004. The group applied the following year for an extension of the existing permit, allowing them to perform a host of tasks, including:
• Removal and remediation of an underground fuel tank that had leaked slightly prior to 2004, and installation of a new, above-ground tank;
• Replacement and repair of damaged bulkheads and installation of rip-rap –the placement of large rocks on the shore to mitigate erosion;
• Removal of asbestos; and
• Dredging the entrance to the marina, which over time has become narrowed by the flow of sand into the channel.
The dredging would remove approximately 500 cubic yards of what Kevin Brand, one of the owners of the marina complex, said is almost certainly just sea sand. “Likely it will be used on the beach, it’s perfectly good sand,” he said.
It is the dredging that Fraizer-Alexis flagged as one of the key objections to the permit application as it stands. Under the law, the applicants must have an approved plan for how the material will be finally disposed of before the CZM committee can approve the permit, she said. The applicants had specified where they would place the material temporarily and, assuming it to be just uncontaminated sand, how they plan to use it. However, the application had no plan for final disposal of the material.
This raised a concern among the senators that, since the permit had been inappropriately approved, the applicants would have to go back to the beginning of the process and start all over.
Another major objection was to the language of a clause establishing liability indemnification. Fraizer-Alexis said the initial language would have passed muster, but it was changed at some point in the five-year process, and the existing language does not meet the legal standard required by law.
“We’re looking at the letter of the law,” she told the committee. “We don’t know ‘how it’s always done.’ We know what the law says.”
Other concerns included how the required easement for beach access was to be filed and whether plans to mitigate the impact of the work on the neighboring environment were included with the application.
Committee members expressed frustration at the CZM committee and DPNR for “not crossing the Ts and dotting the Is” before the permit was sent to the Senate for final approval. It’s not the first time there have been such problems, Sen. Carlton “Ital” Dowe said.
“It’s like when your teacher grades your homework and time after time she’s got the same mistakes checked off,” he complained.
Green Cay Marina and the adjoining Tamarind Reef Hotel employ about 100 people, the owners said. The required work won’t add new jobs, they said, but at some point if the complex had to close down it would cost that many jobs.
Sen. Shawn-Michael Malone, chairman of the committee, told the applicants the last thing he wanted to do was make them start the whole process over, but added, “I’m not making this up. This is what the law says.”
He asked for a motion from the committee holding the application for 30 days and directing CZM to fix the deficiencies. Sen. Michael Thurland made the motion, which was approved 4-0, with Malone, Thurland, Dowe and Sen. Sammual Sanes voting aye. Sens. Patrick Simeon Sprauve, Adlah “Foncie” Donastorg, Jr. and Alvin L. Williams, Jr. were absent.
