The Coastal Zone Management program was enacted by Congress more than 40 years ago and has been part of the Virgin Islands landscape since 1978 to protect coastal areas from the ravages of development. Yet it’s still a common sight to see a plume of mud spreading from the shoreline into a bay following a robust rain shower. At first the streaming sediment clouds the water, then settles on the reefs and sea grass, damaging corals and other forms of marine life.
Someone unfamiliar with development laws might wonder how that could happen, especially when there are no obvious signs of construction nearby. However, savvy islanders know all too well that sediment flowing into a bay might come from an uphill site, perhaps miles away from the scrutiny of agencies charged with monitoring soil runoff.
NOAA questions a two-tier system
Construction projects built near shorelines within the territory are generally required to go through an extensive permitting process because they fall into an area designated as “Tier 1” by the territory’s Coastal Zone Management, a division of the Department of Planning and Natural Resources.
Major construction permits for Tier 1 projects must be studied by CZM staff who then issue a report with recommendations. After a public hearing is held, the project must be approved by a local committee, and then by the V.I. Legislature and the governor. The process is lengthy, but it’s designed to make sure that a development does not destroy the very thing that makes it desirable in the first place – the health and beauty of the surrounding natural environment.
Further from the shoreline, construction projects designated as Tier 2 go through far less scrutiny. The Division of Building Permits, which is under the Department of Planning and Natural Resources, issues permits under Earth Change Law, while the Division of Planning, also part of DPNR, issues zoning and subdivision permits.
Unless a zoning change is required, public hearings are not held, and legislative or executive branch approval is not included as part of the process.
Flaws in this system have led to public outcry in the past, but little has changed. However, a recent federal report once again is raising the issue of whether the two-tier system should be abolished in the Virgin Islands.
As part of a 10-year evaluation of the territory’s Coastal Zone Management Division, the National Oceanic and Atmospheric Administration recommended that Coastal Zone Management develop a white paper to analyze options for revising the two-tier system.
Their report, issued last summer, stated, “The evaluation team received numerous comments in a survey, as well as from interviews, about a perceived need to change or remove the boundary between Tiers 1 and 2.”
The boundaries delineating Tier 1 and 2 “are not uniform throughout the territory, and that’s what people have an issue with,” said Jean-Pierre “JP” Oriol, director of Coastal Zone Management for the Virgin Islands. In some places, it’s determined by distance from the sea; in other places, the boundary is determined by a feature, like a road. In other places it’s determined by elevation, he said.
The situation is particularly sensitive on St. John, where the terrain is steep, increasing the risks of runoff from sediment.
Parts of Cruz Bay exempt from CZM
Changing all of St. John to Tier 1 is critical, according to many residents, because portions of Cruz Bay now lie outside of Tier 1 CZM boundaries in spite of their proximity to the water.
Why should the most “urban” part of the island be exempt from a more rigorous approval process? Historian David Knight Sr. says it has to do with economic and political interests in the past.
“It’s my understanding that when CZM was being instituted, the feeling was that Cruz Bay was under-developed, and they didn’t want to do anything to hinder development. There were some pretty high-powered people who didn’t want to see [their property] restricted.”
Knight said as the island continued to grow in recent decades, the town’s exemption from the Tier 1 designation should have been terminated, but legislation mandating this has never been enacted.
Several attempts over the years to implement a new, territory-wide Comprehensive Land and Water Use Plan, which might have addressed this concern, have failed.
The issue came to the public’s attention in the mid-1980’s when Wharfside Village, a shopping and restaurant complex built right on the beach in Cruz Bay, did not require a major CZM permit.
However, a proposal to construct an adjacent marina did require a major CZM permit because it involved the use of submerged land, all of which is considered Tier 1.
The plan to build the marina in front of Wharfside Village was not approved then, and more recent proposals have generally met with public opposition.
In the past year, Coastal Zone Management has issued minor permits for the installation of swimming buoys and a floating dock near Wharfside Village. As “minor” developments, they had to be approved by CZM staff but did not require public hearings.
Recent changes stir one-tier debate
Meanwhile, development of properties beyond Tier 1 boundaries continues. In at least four locations, including the bottom of Jacobs Ladder in Cruz Bay and several sites up on Centerline Road, land has been cleared to store heavy equipment. In some cases Earth Change permits have been posted, and in some they haven’t. CZM is not mandated to review or monitor these sites.
In October, the V.I. Legislature approved a zoning variance after a gas station was built in a residential neighborhood in Estate Adrian without the proper permits. The gas station sits on flat terrain in a Tier 2 zone which is prone to flooding. Under the guidelines for Tier 2 construction, the gas station was situated far enough away from a gut to pass permitting standards. (A gut is ravine that allows rain water to flow downstream to the sea.)
However, if the project had been within Tier 1 jurisdiction, further environmental impact studies might have been required and a public hearing would have given residents the opportunity express their concerns.
As St. John continues to recover from Hurricane Irma, plans to rebuild or construct new projects will inevitably bring the one-tier debate to the forefront.
Shortly before the hurricane, local developers announced plans to build a new hotel in Cruz Bay on 2.5 acres of land between Mongoose Junction and the Lumberyard Complex. That property does not fall within Tier 1 designation although it is located on a steep grade a few hundred feet from the sea.
The hurricane-damaged Lumberyard Complex, which was recently torn down, also is not within Tier 1. Unless the laws are changed, the public will not get a chance to weigh in on plans for construction of these substantial developments.
Coral Bay Community Council argues for one-tier designation
The Coral Bay Community Council – also known as CBCC – will celebrate its 15th anniversary at its Annual Meeting and Potluck Dinner on Monday from 4:30 to 7:00 pm at Miss Lucy’s, the shoreline restaurant in Coral Bay, St. John. A social hour begins at 4:30 p.m., followed by dinner. The event will conclude with a short business meeting at 6:30 p.m. Everyone is welcome, whether a member or not. Organizers request that anyone attending bring a dish that serves six people or more. Drinks will be available for sale.
“This is our fun and relaxing annual member celebration with music, great food, and a performance by the talented local children’s group, the Dynamic Dancers,” said Sharon Coldren, who is volunteer president of the group.
Concerns about storm water runoff have been the focus of the Coral Bay Community Council since its inception 15 years ago. CBCC has procured nearly $3 million in funding for storm water management projects in the 3,000-acre Coral Bay watershed.
Coldren believes all of St. John should be designated Tier 1 for several reasons.
“Basically, the need to manage our watersheds really occurs on a ridge-to-reef basis. The artificial distinction between Tiers 1 and 2 doesn’t make sense as we realize more and more that upland activity has a big impact on our water drainage into the ocean,” she said.
Coldren also believes property owners are better protected by the public notification process mandated by Tier 1 regulations.
“In Tier 2, your neighbor can show up with a backhoe and start excavating with no notice,” Coldren said. “There isn’t an opportunity to double check that your neighbor’s activity won’t have a negative impact on your property.”
When a property owner in Tier 1 applies for a minor permit, adjacent neighbors are notified by mail; if the project qualifies as a major permit, the date for a public hearing is published in local media. The public gets an opportunity to review the plans and make comments prior to any recommendations issued by the Department of Planning and Natural Resources.
Coldren thinks everyone benefits when a proposed project can be made public.
“When things are behind closed doors and you don’t have full notice, there’s much more potential for payoff and graft,” she said. “When it’s out there in the open, people can see that [the process] is fair and are not subject to the belief that there are payoffs.”
The two-tier system leads to confusion, Coldren said. “Mistakes will get made.”
Reasons the one-tier system is not implemented
For all of the reasons above, Tier 1 designation for all of St. John – and perhaps the territory – might seem an obvious choice. But there are major obstacles to making the change, including lack of funding and lack of public will.
According to NOAA’s report, “If the territory were to move to a one-tier system, major activities would be addressed more consistently; however, a single tier would add significantly to the number of major and minor applications that the Division of Coastal Management would need to review, with no assurance of additional staff members, and would require legislative action for which the political will to do so is uncertain.”
In other words, policy makers and legislators are unlikely to make the unpopular choice to increase the budget for CZM.
There is another underlying political issue: With the current Trump-era trend towards deregulation, implementing policies that might restrict a property’s development is a tough sell, even as the fragility of the environment becomes more apparent.
The one-tier system “has two sides,” said Oriol, who prefers to keep his own opinion on the matter to himself. Although it is a concern that a development the size of Home Depot does not need CZM approval because of its location, Oriol doesn’t see the one-tier option as something that will move forward. “There will be enough people who say, ‘I don’t want to go through that process.’”
The question becomes, “What specifically in Tier 1 are people pleased with that Tier 2 doesn’t do?” Oriol asked. “Is it notification to adjacent properties? Is it the penalty process? What are the flaws in the Earth Change program? How can they be improved?”
Oriol also questioned whether CZM boundaries should be different on each island. On St. Croix, where the terrain is relatively flat, would those boundaries be defined by distance from the shoreline? On St. Thomas and St John, where the terrain is steeper, should those boundaries be defined by elevation? And what is the cost threshold for increasing staff to review applications if either system were implemented?
The next step, according to Oriol, is to move forward on NOAA’s recommendation to develop a white paper to determine “the best solution to reduce sediment and erosion impacts on the coast.” That process would include consulting staff in the various divisions of DPNR. It might involve forming advisory groups from each island. It should consider the opinions of the members of the coastal zone management boards from each island, assuming the vacant positions on those boards are filled.
And of course, once the best solution is determined, it must be implemented by legislation. In its report, the NOAA evaluation team set specific goals and timelines for several improvements to CZM. For a change in the two-tier system, no timeline was determined.