August 18, 2014

Eric Summa, Chief

Environmental Branch
U.S. Army USACE of Engineers
J acksonville District
701 San Marco Boulevard
J acksonville, FL 32207

RE: WARNING LETTER OF POSSIBLE VIOLATIONS AND NON-COMPLIANCE

Miami Harbor Phase III Federal Channel Expansion
Permit No. 0305721-001-BI
County: Miami-Dade

Dear Mr. Summa:

The purpose of this Warning Letter is to advise the U.S. Army Corps of Engineers (USACE)
of possible violations and non-compliance issues related to Department of Environmental
Protection (the Department) Environmental Resource Permit Number 0305721-001-BI
(Permit), for the Miami Harbor Phase III Federal Channel Expansion Project (Project).

On J uly 22-23, 2014, Department staff conducted a site inspection of the Project. Please see the
Departments Site Inspection Report attached. During this diving inspection, significant impacts
to hardbottom beyond those that were permitted were observed. These additional impacts
indicate possible violations of Chapter 373 and Chapter 403, Florida Statutes (Fla. Stat.).

Section 373.430(1)(b), Fla. Stat., 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.

Section 373.430(2), Fla. Stat., 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.

In addition, Section 403.161(1)(b), Fla. Stat., 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 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.

Section 403.141(1), Fla. Stat., 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,





Florida Department of
Environmental Protection
Bob Martinez Center, Room 608
2600 Blair Stone Road, MS 3566
Tallahassee, Florida 32399-2400




RICK SCOTT
GOVERNOR

CARLOS LOPEZ-CANTERA
LT. GOVERNOR

HERSCHEL T. VINYARD, J R.
SECRETARY
Eric Summa
August 18, 2014
Page 2 of 5


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. However, the
court may receive evidence in mitigation. Each day during any portion of which such violation
occurs constitutes a separate offense. Nothing herein shall give the department the right to bring
an action on behalf of any private party.

On April 18, 2014, a written Compliance Assistance Offer was issued to the USACE regarding
other possible Permit non-compliance issues, as part of an agency investigation preliminary to
agency action in accordance with Section 120.57(5), Fla. Stat.

While the Department has been in dialogue with the USACE regarding matters addressed in the
Departments Compliance Assistance Offer, a Department review has concluded that possible
non-compliance issues are still on-going with this Project.

The USACE appears to remain out of compliance with the following Specific Conditions of the
Permit:

Specific Condition 32 a.ii.d, of the Permit provides, in part, that stress expressed above normal
by corals and/or octocorals within transects will require an additional survey to outline the
area(s) of impact. Impacted areas shall continue to be monitored monthly during the
construction, one month post-construction, and two times during next year in order to
document results of the impact. Final monitoring results shall document permanent impacts,
if any, to be used for estimates of additional mitigation using UMAM.

A Department staff review of the weekly Coral Stress and Sediment Block
Monitoring reports submitted through August 7, 2014, and the site inspection
conducted by Department staff on J uly 22 and 23, 2014, shows that coral
stress at the channel-side compliance sites was significantly greater than coral
stress at the reference sites. According to SC 32 a. ii. d., stress expressed
above normal by corals and/or octocorals within transects will require an
additional survey to outline the area(s) of impact.

The methodology proposed by Great Lakes Dredge and Dock (GLDD) on
J uly 31, 2014, to outline the impacted areas is insufficient and does not meet
the intent of the Permit. Specifically, GLDD recommended that surveys be
"basic in nature, covering a minimal area with just a visual interpretation of
impact" along 40-meter transects.

During the recent site inspection by Department staff, impacts to hardbottom
resources were observed; these impacts were visually conspicuous through the
entire length of the surveyed area (200 meters from the channel edge and
continuous beyond that limit). In order to document the full extent of impacts
and outline the impacted areas as required by the Permit, transects should
extend until impacts can no longer be visually detected, or when sediment
Eric Summa
August 18, 2014
Page 3 of 5

depths (i.e., recently-accumulated fine sediments) diminish to levels
comparable to other areas outside of the influence of the project (i.e., control
sites). These transects will likely be significantly longer than 200 meters, as
recently observed by Department staff during the site visit. The Department
recommends that GLDD use Dr. J ennifer Petersons J uly 9, 2014, guidance
for outlining and monitoring the impacted areas, or a similar methodology that
is equally prescriptive.

In addition, Specific Condition 32 a. iii. a. 2, of the Permit provides that Measured net
sediment accumulation levels at project area sites where corals show decline potentially
associated with dredging shall be used to adjust or ground truth the sedimentation average
rate of 1.5 mm per day above the reference site accumulation currently proposed as the
maximum for the project. Evidence of 1) coral decline (per SC 32.a.ii.d), or 2) sedimentation
rate of 1.5 mm per day above the reference site that results in stress as defined in SC 32.a.ii.c
defines a significant event; In the case of a significant event, the dredging operation must
move to a new location until: 1) effected organisms have recovered (signs of stress are no
longer visible) as approved by a biologist, or 2) a determination is made that it is potentially a
secondary impact and the protocols in SC 32.a.ii.d for monitoring and additional mitigation ,
if any, shall be followed.

The weekly Offshore Coral Stress and Sediment Block Monitoring reports
have shown the sediment traps and blocks to be ineffective for accurately
measuring sediment accumulation at the channel-side monitoring
stations. The Department has strongly recommended that sediment traps and
blocks be replaced with a more reliable and simpler method to measure
sediment accumulation on hardbottom. The methodology proposed by the
USACE on August 8, 2014 is insufficient for adequately measuring the extent
of sedimentation adjacent to the channel. The USACE proposed taking
sediment depth measurements at five intervals along the center transect at
each monitoring station, and measuring the sediment depth to the nearest
cm. The Department strongly recommends that sediment depth measurements
be taken every meter along each transect and the sediment depth measured to
the nearest mm.

Specific Condition 32 a.i.d., 4, concerning notification of sediment stress states: Notification of
sediment stress will be by phone, fax, or e- mail, and followed by a written report to be submitted
within 24 hours to the agencies. Agencies will be notified immediately of the possibility of
unacceptably high sediment levels on the reefs (or on the next work day if the indicators are
noted on a weekend or holiday).

Staff observed evidence of project-related impacts to the Middle Reef (2
nd

reef) during the site inspection on J uly 23, 2014. Elevated coral stress at
Middle and Outer Reef (2
nd
and 3
rd
reef) monitoring stations has been
documented in weekly reports, but the Department was not notified of
sediment stress within 24 hours, as required by specific condition 32 a.i.d., 4.

Specific Condition 33 of the Permit provides that A pre-construction survey shall be conducted
at the northern mitigation reef site, and the location(s) of any benthic communities identified
Eric Summa
August 18, 2014
Page 4 of 5


in the survey shall be recorded by DGPS. During reef construction, no material shall be
placed within 30 meters of the hardbottom communities. A copy of the survey shall be
submitted to the Department prior to engaging in reef mitigation activities

A pre-construction survey identifying the locations of benthic communities was
not provided to the Department. As documented by Department staff during the
site inspection performed on J uly 22-23, 2014, material was placed within 30
meters, and in more than one location, directly on top of hardbottom
communities. During the J uly 24, 2014 meeting with the USACE, the
Department requested that the USACE provide a copy of the video survey
methodology and the videos that were taken at the artificial reef site prior to
construction. The Department has not received this information.

Damaged corals and octocorals should be transplanted as soon as possible to
prevent mortality. The extent of the impacts to natural hardbottom in the area of
mitigation reef should be surveyed, and the results of this survey should be
provided to the Department. The results of this survey shall be evaluated by the
Department to determine if additional mitigation is necessary. Department staff
are available to provide assistance in the preparation of monitoring and
transplantation protocols.

Please provide a response within 14 days of receipt of this Warning Letter. If you have any
questions or comments, please contact J im Martinello, Environmental Administrator, in writing
via e-mail at [email protected] or at the address provide above, referencing Mail
Station 3566. When replying please also copy Charlotte Hand at [email protected]
or at the same address above. When writing, please reference the project name and number
provided above. If you would like additional information via telephone, please call Ms. Hand at
(850) 245-7591.

This is part of an agency investigation, preliminary to agency action in accordance with Section
120.57(5), Fla. Stat. Your assistance in resolving these matters will be appreciated.

Sincerely,



Mark Thomasson, P.E.
Director
Division of Water Resource Management

Attachment: Site Inspection Report

cc:
J im McAdams, USACE
Laurel Reichold, USACE
Matt Miller, USACE
Terri J ordan-Sellers, USACE
Russ Zimmerman, GLDD
Danielle H. Irwin, DWRM
Martin Seeling, DWRM
Lainie Edwards, DWRM
Eric Summa
August 18, 2014
Page 5 of 5

J im Martinello, DWRM
Roxane Dow, DWRM
J ennifer Peterson, DWRM
Kristina May, DWRM
J CP Compliance Officer
Vladimir Kosmynin, DWRM
Brendan Biggs, DWRM
J ill Creech, Director, SE District
J ack Chisolm, OGC
Gareth Leonard, OGC
Lisa Gregg, FWC