Pending: Judicial review of Palisadoes project

BY PETRE WILLIAMS-RAYNOR Environment editor williamsp@jamaicaobserver.com

Wednesday, July 27, 2011    

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THE Supreme Court is shortly expected to hand down its ruling on the issuing of permits for work on the controversial Palisadoes Rehabilitation and Shoreline Protection project.

This follows an application for a judicial review by the Supreme Court in Kingston, filed in March by the Jamaica Environment Trust (JET) concerning the National Environment and Planning Agency (NEPA) and the Natural Resources Conservation Authority (NRCA) board's approval of the US$65-million project.

The China Harbour Engineering Company is undertaking the work, which includes the construction of coastal protection structures and associated coastline reclamation, as well as the construction of a four-lane road, a boardwalk and bicycle track. The project — financed through the China Exim Bank — is also to have solar lighting features.

"JET alleges that the public was not adequately consulted regarding the project and all required permits had not been sought and granted for the project and is (therefore) seeking declarations from the court to that effect," said Danielle Andrade, JET's legal director.

"They have a prescribed list of categories that require a permit from the NRCA and there were several aspects of this project that we felt would have required permits. When these permits are granted, they are usually granted with conditions that require the developer to take steps to mitigate any negative impacts of that particular activity. So the clearing of the sand dunes (and) construction of this four-lane road, all of these we felt are major works that fall within these categories, so that there would have been some sort of regulatory control over it, in accordance with what the law prescribes," she added.

Andrade noted that should the court rule in favour of JET, then it would "provide some practical guidance to NEPA and the NRCA about the proper procedure to be followed when permitting certain major developments".

Meanwhile, NEPA has insisted that there was no need to consult the public on the project, which builds on rock revetment work started in the area in 2006.

"While the agency understands the request for additional consultation at the time of our review, considering that the new proposal fell within the footprint of the old proposal, we were of the opinion that there was no greater environmental impact that would have happened. Consequently, the public was not consulted," said Ainsley Henry, acting director of the Applications Management Division of NEPA.

"However, the agency does recognise and understand that the public has an interest in the project and we accept that we could have provided or caused the information to be provided about the changes to the design at an earlier time," he added.

But Henry strongly refuted the need for any permits outside of those provided, notably, a permit for the modification of wetlands, beach licences for the construction of the revetments and for the reclamation of a small area, and a permit for petroleum storage.

"With regards to the assertion that additional permits and licences are required, specifically the assertion that a permit needed to be granted for the road construction, the agency uses the legislation and the legislation has clear guidelines as to when a permit is required, and this project does not fall under that," he told Environment Watch.

Henry added that there was also no need for an additional environmental impact assessment (EIA) to be done.

"We affirmed that it (EIA) is not required. It is called an environmental impact assessment for a reason. If the area to be impacted remains the same from project to project, then why would you need a new EIA?" he noted.

Still, he said they would abide by any ruling handed down by the courts.

"We will, naturally, if so guided by the court, conform with whatever the court's decision is," Henry said.

JET filed the papers in March and the matter was heard by Justice Jennifer Straw on June 6 and 7.

Since the start of preparatory works by the National Works Agency (NWA) last year, the project has been a source of controversy as 'green' lobbyists contend it holds negative environmental implications for the Palisadoes-Port Royal Protected Area where the work is being done.

At the time, JET boss Diana McCaulay said that, among other things, the biodiversity of the area could be compromised, while criticising NEPA for failing to adequately perform its regulatory functions.

"I want an environmental regulator that understands its mandate and protects the environment. And if it is open season on the environment, if the only thing that matters is economic development, then I want us to stop pretending," she said then.

"I want us to stop pretending that we have a regulatory agency whose job it is to protect the environment. I want us to stop declaring protected areas, because what does it mean to declare a protected area if this is what can happen inside one?" she added.

McCaulay's criticism followed NEPA lifting a stop order on preparatory work in the area last September.

The stop order was issued on the NWA on September 8 to allow for the demarcation of the working footprint to diminish the likelihood of works going outside of the area, as well as to ensure that all rare/endangered/endemic species within the footprint had been removed. It was also issued to allow for the repair of a dune outside of the footprint of the work area that was damaged.

NEPA later defended its decision to lift the stop order.

"The biodiversity of the Palisadoes-Port Royal Protected Area has not been compromised as a consequence of the works that have been approved for the area. The endangered endemic Opuntia tuna (a cactus) was identified within the footprint and has been relocated," the agency said at the time, in a written response to Observer queries. "The other species within the footprint are common dune scrub vegetation, which will be re-established on the dunes that will be created behind the coastal protection works once complete."

"In advance of that, the sand that has been dislocated has been placed seaward (south) of the footprint and will be vegetated once the coastal protection structures have been constructed. NEPA accepts that there has been some loss of vegetation and that the relocation of a single species does not replace the ecosystem damage, but advances the case that the mitigation that is to be done on the newly re-established dunes will compensate for the lost ecosystem over time," NEPA said further.

Later, work at the project was again hit by controversy when the Sunday Observer broke the story that river stones from the Cane River community in East Rural St Andrew were being mined for the revetment work on the Palisadoes.

Faced with ever decreasing numbers of boulders from the river which runs alongside their homes, residents raised a hue and cry, pointing to the potential for heavy flooding which risks the loss of their lives and property.




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