Hon. José Chico Vega Presidente Comisión de Desarrollo Económico, Planificación, Comercio, Industria y Telecomunicación Cámara de Representantes - Estado Libre Asociado de Puerto Rico P. de la C. 1649: Ley para la Reestructuración y Unificación del Proceso de Evaluación Otorgamiento de Permisos May 23, 2009 Thank you very much for this opportunity to speak to the Hon Representatives on 1649, la “Ley para la Reestructuración y Unificación del Proceso de Evaluación y Otorgamiento de Permisos” crafted in part to mitigate the economic crisis in Puerto Rico. CORALations is an award winning, non-profit coral reef conservation organization based on the island of Culebra, Puerto Rico. We currently maintain a membership base of over 600 people from Puerto Rico, Culebra and the US Virgin Islands. As the Project Coordinator and now Director of CORALations, I have worked in Puerto Rico for the past 15 years and with the community of Culebra for over 10 of those, including collaborations with the University of Puerto Rico’s Coral Reef Research Group, the Culebra Fishermen’s Association, Culebra’s municipal government, local churches, visiting service groups, local schools, and high-risk youth. We manage and provide educational nature tourism opportunities designed to benefit locally owned and managed businesses. We have won collaborative awards with academia and the Culebra Fishermen’s Association for contributions toward the designation of the first no-take Marine Protected Area in Puerto Rico's waters. A “Coastal America Spirit Award” was presented to then Resident Commissioner, the Honorable Luis Fortuño by the President of the United States, with recognition in part to our and the Culebra Fishermen’s Association’s contributions to the creation of this reserve. We have been recognized by the “U.S. Executive Coral Reef Task Force,” which will be holding its next conference in Puerto Rico in October 2009. We are currently collaborating on proposals to bring significant federal money to Puerto Rico and Culebra to create jobs with the expansion of UPR’s innovative coral farming project, and have been working on green job creation and certification for construction workers engaged in watershed restoration. We are in the process of training local high risk youth to scuba-dive to expand and provide employment opportunities on the coral farms in the future. These have been the investments in our community, and these contributions truly pale in comparison to the work being done by other community leaders and associations located on Culebra and in Puerto Rico. 1. As the honorable representatives embrace this rush to attract outside investors indenting to buoy the economy, please do not forget that community groups throughout the islands make enormous investments of personal time, dedication and sacrifice, and with no special interest attached. There are community leaders, educators, clergy and government officials who should enjoy the right to meaningfully review and comment on these proposed changes, but we are concerned the accelerated pace of this process has deprived them of a meaningful voice.
P. O. Box 750 Isla de Culebra, PR 00775 1-877-77CORAL / 1-877-77(2-6725) (o) 787-556-6234 (f) 530-618-4605 @email: info@coralations.org
2. The beautiful island if Culebra today stands as an example of the benefits of conservative and balanced environmental legislation. The result is a sustainable nature tourism economy, zero involuntary unemployment and a much lower crime rate than the big island of Puerto Rico. After the local people of Culebra removed the U.S. Navy, Law 66, 1975, as amended, was created to serve the objectives laid forth in Culebra’s Master Plan (Joint Report.) This master plan was thoughtfully put together by Culebra Island and Commonwealth leaders aware of their critical obligation to balance development needs of the small island community with the responsibility of holding in the sacred trust, the conservation of these stellar natural resources for future generations. They recognized the value of their natural patrimony and the moral obligation to protect it for their children and their children’s children. 3. To achieve the objectives put forth in the plan, the Law 66, 1975 (as amended) established environmentally focused public policy for the island, and defined the make up of the Culebra Conservation and Development Board. While we agree the make up of the board requires redefining, we don’t believe now is the time. Article 2 of the law declares that “the public policy of the Commonwealth of Puerto Rico is to preserve and conserve the ecological integrity of Culebra, including its keys, island, and surrounding waters, and to insure that the continuing development of Culebra protects and conserves, to the greatest extend possible, its extraordinary natural environment, which is part of the patrimony of Puerto Rico.” While these amendments leave part of this stated policy in place, it destroys through changes to law 66 and other planning legislation, the legal mechanisms in place to enforce it. 4. Consistent with public policy the Puerto Rico Planning Board adopted the special low density zoning based on the following recommendations made in the Master Plan for Culebra … “that those areas which are not specifically set aside for wildlife refuges, recreational use, or development, be designated as conservation areas, that is, as open space, for agricultural and other low intensity uses consistent with the natural character of the land.” 5. An understanding for the challenges and complexities involved in coastal zone management is integral in grasping concerns about the legislative changes proposed by 1649 and 880, and the ability of these proposed changes to actually address the local economic crisis as intended. 6. Coastal zone management evolved as a way to reduce rising conflicts associated with increasing residents and activities associated with the shorelines. It includes terrestrial areas where activities or development could result in impacts to coastal waters. All of Culebra is considered within the coastal zone and is managed by the Culebra Segment of the Coastal Zone Management Plan, where just as on the big island of Puerto Rico, the coastal zone management plan is supposed to serve as the land use management for those areas inside the zone. Page II - 1 of the Culebra Segment of the CZMP
Soils Because of its small size, its rugged topography, and its uniform conditions of climate and temperature, Culebra has a limited number of soil series. Seventy-five to eighty per cent of its total area is covered by soils of the Descalabrado and Volcanic Rock series. This class of terrain has such severe limitations and danger of erosion that it may only be used for pasture, forest or wildlife. Of the rest of the area, only about 2.2 percent can be dedicated to agricultural uses other than pasture; even in areas suitable for cultivation, steps must be taken to avoid severe erosion and related problems. In summary the soils of Culebra are mostly shallow and lack adequate nutrition to support plant life. Erosion is a major problem. Two thirds of the total area of the island possesses such severe limitations that it cannot be cultivated. Those areas which can be cultivated urgently need the implementation of complex techniques of soil and water conservation. Page V-2 Culebra Segment CZMP “Problems of sedimentation alone would appear to justify the conclusion that the entire area of Culebra is “shorelands.” There are no perennial streams on Culebra (or on the adjacent islands and keys). Surface runoff from occasional heavy rains and storms flows into coastal waters directly or via ephemeral streams. Sedimentation resulting from storm runoff represents a potential threat to the mangroves and reefs that are among Culebra’s principal natural resources, as well as to the waters themselves. Since virtually any uses of the lands…including grazing or construction of even modest homes…can cause sedimentation in the dry, fragile environment of Culebra, it seems essential to consider all of Culebra as being “shore-lands”, the uses of which have a direct and significant impact on the coastal waters.”
2
The Culebra Segment program will insure that these determinations are based on sound information and processes which reflect the value of the natural environment. ……….This will reduce the development pressures on environmentally sensitive or valuable areas, and will also serve to reduce urban sprawl with its variety of induced impacts. It should help reduce conflicts between public and private interests by identifying planning constraints and opportunities, so that developers can make their development decisions within the context of the appropriate public interest and environmental consideration.
7. It is our understanding that 1649 seeks to restructure the permitting process in large part to demonstrate stability in Puerto Rico for the purpose of attracting external investors. These are very lofty goals and while we agree the people of Puerto Rico deserve a better process, these proposed legislative changes seem reckless. This will likely be the defining legislation of your political careers. We are concerned that the proposed amendments completely fail to reflect any thoughtful comprehension of the dynamic complexities of coastal zone management. Neither the politicians, nor the people of Puerto Rico can afford the approval of such rushed and unbalanced legislation that risks visible failure at this critical economic juncture. 8. By simultaneously expediting the permitting process and then depriving good citizens of their rights to free intervention in the planning process, the legislation actually promotes irreparable harm from unsustainable development to both communities and their environment. This careless legislation will actually fuel, and not prevent more visible conflicts. Not only is this unconstitutional, as has been illustrated in many previous ponencias, it is completely contrary and backward to the stated goals and objectives of sound coastal zone management practices respected throughout the developed world. Legislation based on laws to move development in Philadelphia for example, would not be able to address the issues that continue to emerge within the coastal zone. Coastal zone management planning recognizes coastal areas as dynamic with increasing numbers of conflicting user interests and the responsibility to protect these valuable resources up front, with sound land use planning and enforcement. 9. With all of Culebra defined as within the coastal zone, even modest impacts to the land can result in impacts to coastal water quality, and shared public resources. All residents of Culebra stand to be impacted by development activities on the island. This legislation restricts public participation, forcing the concerned citizen, community organization or merchants to prove that the approval of a permit will impact their proprietary interests and that that interest is clear, direct, immediate and indisputable. The concerned citizen or group will have to be bonded while there are no bond requirements discussed in this bill for damages caused by development and developers. A legitimate review process and meaningful citizen participation has been completely removed. The burden for judicial review of the Junta Adjudiciativa is placed on the Supreme Court, and it is left to the discretion of what will quickly be an overburdened and increasingly desensitized court whether to even review the issue and render a decision. This, and proposed amendments to Law 66, 1975 (as amended) removing local Culebrenses on the board of ACDEC, are contrary to the public policy of the Government of Puerto Rico which further “guarantees the participation of the culebrenses in deliberative and decision-making processes that affect 10. Regarding the “Licensed Professional” the amendments would allow architects and engineers to issue permits for a project without benefit of meaningful public participation and for which the professional, while not an expert on environmental issues, is empowered to determine if the project would cause environmental harm. This is not reflexive of sound science based decision making and can foster as opposed to curb corruption of the process. 11. Art. 9.10. Once a structure is built with a permit, it will not be demolished even if an error of law is determined. A 16 inch concrete wall and bird tower was once constructed that blocked a traditional
their communities and their environment.” Article 1(m), Puerto Rico Law 114, June 13, 2006.
access to a beach on Culebra. While constructed with a contractual permit signed by the Secretary of Natural Resources, the agreement was later found to be illegal and the structures demolished by an order issued by the municipal government. If this happens again this legislation could protect the privatization of beaches by preventing the destruction of the illegally permitted structures. This will deprive impacted communities an opportunity for restoration, and fuel visible conflicts reducing the attractiveness of Puerto
3
Rico as an investment destination. This policy will create direct incentive, as opposed to curb, corruption of the process. 12. Proposed changes to Ley 66, 1975 would permit the construction of towering condominiums now prohibited on the island. 13. The Multi-Hazard Risk Assessment and Vulnerability Study Project Impact Culebra, Inc. Aug of 2000, concluded: “Development should be discouraged in areas of high hazard risk depicted on the Proposed Land Use Plan. These areas include high and severe risk from hurricane strength winds and areas susceptible to landslides. Zoning and subdivision regulations provide the best tool for Culebra to create a more sustainable and disaster resistant future.” Legislation that seeks to bypass these planning provisions will result in development that will cause damage to adjacent properties, coastal waters and possible loss of life during strong storms and hurricanes. 14. In 2008 Puerto Rico waters to three miles offshore were Federally listed as Critical Habitat for two species of threatened corals Acropora cervicornis and Acropora palmata. In 1998, the coastal waters of Culebra to three miles offshore were federally listed as critical habitat for the threatened green sea turtle Chelonia mydas. Low lying mangroves surrounding much of the island are part of Culebra’s National Wildlife Refuge. There are critical habitat sea turtle nesting beaches to protect endangered and threatened sea turtles. These environmental designations striving to protect the resources present educational tourism opportunities that have attracted a good caliber repeat nature tourist to the island for decades. With proper management and not overly promoted, this is sustainable. Both the House and Senate should request and review comments on this proposed legislation from National Marine Fisheries Service and U.S. Fish and Wildlife Service.. 15. Nature tourism has been a stable industry on Culebra, and one that provides a direct economic incentive to protect the environment. Projects now proposed for Culebra pretend to introduce nature tourism to the island while building on and consequently destroying ecologically sensitive lands, coastal water quality, fish, fish nursery habitat, fishing, birds, coral reefs and related habitats, endangered species, overall green space, ecological integrity through fragmentation, cultural activities linked to marine resources and even star gazing destroyed by urban light pollution. The failure of the Costa Bonita Resort Project today, fast tracked in opposition from local community as a “hotel room emergency,” demonstrates that there is no market for more and similar development on the island 16. As you are well aware, Culebra was used by US and NATO forces as an area to conduct military target practice from the turn of the century to the mid seventies. Culebra’s Community Restoration Advisory Board concerned with the clean up of the bombs on the island was given a map which prioritizes the clean up of unexploded ordinance around the island based on risk. All of Culebra is listed as medium or high priority for clean up based on the risk analysis with the exception of the area surrounding the air port. 17. In 1992, and Archeological testing and data evaluations study was conducted that discovered multiple Taino artifacts and settlements around the island. Properly managed these could be developed into valuable educational, culturally important attractions. Unfortunately this legislation seeks to bi-pass evaluations risking these cultural treasures. Previous regs were never properly implemented or enforced and many areas have already been compromised. 18. The U.S. Environmental Protection Agency (EPA) recently levied fines against eight construction companies in Culebra, P.R. for their failure to follow federal regulations for handling stormwater run off from construction sites. “The failure to implement adequate stormwater and sewage controls at these construction sites was harming Culebra’s fragile coastal ecosystems” said EPA Acting Regional Administrator George Pavlou. “Stormwater runoff carries sediments and other pollutants that endanger sea grasses and coral ecosystems, which in turn can impact threatened and endangered sea turtles. The failure to implement adequate storm water and sewage controls at these construction sites was harming
4
two endangered species of sea turtles, the hawksbill turtle and the leatherback turtle, and one threatened species, the green turtle, that inhabit Culebra’s coastal waters. Elkhorn and staghorn coral, both endangered species, are also found in these waters. Sediment runoff rates from construction sites are typically 10 to 20 times greater than those from agricultural lands, and 1,000 to 2,000 times greater than those of forest lands. Sediment discharges from construction sites can cause physical and biological harm to waterways.” 19. As many developed countries look back at the past 8 years of unsustainable growth resulting in abandoned condominium projects overshadowing skylines and bankrupting economies, it is shocking to see legislation being rushed today with no lessons learned from the global economic crisis. This week the Governor of Florida is about to consider environmental legislation to protect Florida their coral reefs, and international building trends are focused on green job creation that also produce meaningful long term benefits for all of society. It is frustrating that we are here, given only a few days to evaluate radical amendments dramatically redefining the planning process for Puerto Rico and Culebra that appears to have been penned by hungry and frustrated special interests. It strips citizens of constitutional rights and creates a fast track system easily victimized by corruption. This “by any means necessary” development legislation will fuel conflicts that a viable planning legislation should strive to minimize and as a result will not serve the intended purpose of attracting off island investors. 20. Regarding local construction job creation, the Home Builders Association of Puerto Rico has reported in past Caribbean Business articles that as much as 80% of the local urban construction force of San Juan is made up of illegal immigrants. Indeed, Costa Bonita was constructed almost entirely by illegal immigrants. These folks are hard working and deserve jobs, but they lead a frugal existence away from home when working, and send almost all their earnings back to their home island offering little stimulus benefits for local communities. While reform legislation is needed, we believe the proposed legislation misses the mark on public oversight and constitutional compliance. We believe it would harm Culebra, both regarding changes to Law 66 and in changes to planning policy and procedures on which Culebra’s public policy depends. It is our hope that amendments to Culebra be considered separately and with meaningful participation of local Culebrenses consistent with Article 1(m), Puerto Rico Law 114, June 13, 2006. The legislation needs more balance and as the Culebra planning model illustrates, perhaps a stronger and direct environmentally policy will reap more benefits in the long run. Sincerely,
Mary Ann Lucking Director
5