RE: Comments on Alabama Trustee Implementation Group Restoration Area Plan 1 - Draft Restoration Plan and Environmental Impact Statement

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1 30 January 2017 Alabama Trustee Implementation Group NOAA Gulf of Mexico Disaster Response Center Attn: Alabama Recreational Use Restoration Plan 7344 Zeigler Blvd Mobile, AL RE: Comments on Alabama Trustee Implementation Group Restoration Area Plan 1 - Draft Restoration Plan and Environmental Impact Statement Dear Trustees: The Gulf Restoration Network 1 appreciates the opportunity to comment on the Alabama Trustee Implementation Group (TIG) draft restoration plan and environmental impact statement (EIS) to address Alabama s natural- resource injury from the BP/Deepwater Horizon oil disaster. The draft restoration plan and EIS analysis proposes ten alternative restoration opportunities, of which six are preferred alternative projects in Mobile and Baldwin counties. Of the $70,675,000 total proposed funding, $56,300,000 would be dedicated to the Gulf State Lodge and Convention Center at Gulf State Park. The GRN, while generally supportive of five of the six preferred projects, does not support approval or funding of the Gulf State Lodge project and its use of natural resource damages (NRD) monies. The scope of the TIG s review does not evaluate alternatives fully and fairly, nor did it seek the best of use of funds to restore actual damage caused by the BP spill. In its current form, it is not clear how the Trustees choose the Lodge project over others, not having provided consistent and transparent metrics for a comparative analysis of alternatives benefits and costs comparatively. Specifically, the discussion does not include the needed exploration of reasonable alternative projects to address the injury, which the Lodge project fails to do. As such, the Gulf State Park Lodge and Convention Center should not be approved for NRD funding. 1 The Gulf Restoration Network is a diverse coalition of individual citizens and local, regional, and national non- profit organizations committed to uniting and empowering people to protect and restore the resources of the Gulf of Mexico. January 30,

2 I. The Gulf State Park Lodge and Convention Center project lacks a comprehensive alternatives analysis, and is an inappropriate use of NRD funding. A. Clear and Consistent Metrics and Supporting Data for Alternatives As affirmed by the court in GRN v. Jewell, et al., 1:15- cv- 191 (S.D. Ala.), the Trustees must conduct a comprehensive review of project alternatives under NEPA and OPA. Under NEPA, that review of alternatives must present environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decision- maker and the public. 2 The Trustees must not only rigorously explore alternative projects but also establish clear, data- driven metrics for evaluating project proposals comparatively. As explained later in these comments, there is no data or even a projection indicating how the lodge/convention center will make up for damaged resources. Currently, the analysis of alternatives in the draft restoration plan and EIS is completely inadequate. There is no analysis of the most rudimentary of reasonable alternatives: a scaled down Gulf State Park project that includes the various newly added public access components. There is no analysis whatsoever of alternative funding for the lodge and convention center. With respect to the Gulf State Park and this project, the document still only considers the no action alternative and this project. This is exactly what the federal court invalidated before. This is particularly egregious since the draft restoration plan and EIS state that construction would still continue with other funds if the no action alternative were selected. 3 The documents assert, however, that it is unknown whether the various newly added public access amenities (e.g. bike share program, public tram system, public beach access, etc.) would be funded if the Lodge project was completed with private funds, or not be funded at all. If this is the case, then an alternative must be considered that would use the NRD funds to fund the new public access amenities about $8 million and allow private funds to complete the lodge/convention center. The remaining $48 million could then be used for other projects, such as the Gulf Highlands land acquisition. This alternative would plainly result in a much greater restoration or replacement of lost services from damaged natural resources, yet this alternative is not even considered. Again, this is a procedural violation of NEPA and a substantive violation of the Oil Pollution Act. In fact, the draft restoration plan and EIS treats the lodge/convention center primarily as a means to generate revenue. The current draft restoration plan and EIS asserts that a portion of the net revenues from the lodge would be used to support the public access amenities, 4 costing approximately $8.7 million to implement. However, there is no information about what the net revenues will be, or what it will take to support the supposed public access amenities. There is no contract with an operator of the lodge, or any budget for maintaining the public access aspects of the proposal. This is in essence treating the lodge and convention center as an investment, and a way to create a revenue stream. If that is the intent, the Trustees must examine alternatives to create a revenue stream. Building a hotel is improvident, and not necessary to support the public access 2 40 C.F.R See Draft Restoration Plan (RP) and Environmental Impact Statement (EIS) at 5-13, Table 5-2. (Dec 2016) 4 See Draft RP- EIS at (Dec 2016) January 30,

3 amenities. It is illogical to assert that a hotel must be built to support the parts of the project that will actually improve public access. Additionally, other projects - including the rejected ones - all add up to roughly the same amount allocated to the Gulf State Park Lodge and Convention Center project. Yet this project has no specific numbers or metrics for measuring compensation for lost use, while the other projects do. Moreover, the fact that the alternatives analysis contained within this draft restoration plan and EIS has been prepared after the Lodge and Conference Center project is already underway clearly prejudices the analysis of alternatives, and pre- determines the outcome. This is obvious, since the document offers no other alternatives for the park site, and does not consider any other funding source for the proposed project at that site. If an alternative was provided and analyzed to consider private funding that also provides public access amenities, then the entire $56.3 million in funding could be utilized for some other purpose, particularly increasing public access for all users. A list of alternative projects is provided in section II of these comments. In short, the draft restoration plan and EIS does not contain the detailed and rigorous consideration of alternatives required by NEPA. B. Cumulative and Indirect Impacts The TIG is required under NEPA to consider cumulative and indirect impacts of potential projects. 5 All effects and impacts must be accounted for, including ecological, aesthetic, historic, cultural, or social whether direct, indirect, or cumulative. 6 The indirect impacts caused by increased human use, such as automobile and foot traffic, may result in increased threats to environmentally sensitive areas (e.g. critical habitat for endangered species). The Trustees fail to conduct a comprehensive analysis of cumulative and indirect impacts this proposed recreational use projects could potentially cause, such as: Increased auto traffic in and around project areas, such as state parks, potentially causing maintenance problems from increased use of roadways; and, Increased threats to wildlife (including endangered species, such as the beach mouse) and direct and adjacent habitat from human traffic in environmentally sensitive areas. As proposed, development of the Lodge and associated Convention Center will cause harm, rather than restoring these natural resources for the public. C. Proposed projects are meant to address natural resource, natural resource services or resource use injuries, not economic loss As required by the Gulf Restoration Network v. Jewell decision 7, the Trustees must conduct comprehensive analysis under NEPA and OPA when considering projects for lost recreational use in 5 40 C.F.R , , See 40 C.F.R January 30,

4 Alabama. The hotel and convention center proposed by Alabama does not have a nexus to a loss of use of a damaged environmental resource caused by the Spill or repair any such damage, and is inappropriate for funding under NRDA. The original PEIS stated that the convention center project would make up for lost recreational use of natural resources attributable to the oil disaster by creating approximately 120,000 new visitor- nights per year at the lodge, with a roughly comparable number of visitor- days at the park. 8 This claim was not supported by any data, and the current document recognizes this fact and makes no claims regarding new visits. In its current iteration, the objective of the alternative is to compensate for lost recreational use along the Alabama coast and is designed to improve the public s accessibility and enjoyment of Alabama s coastal resources. 9 There are no metrics given for how the project is projected to do this, i.e. visitor nights or some measure of accessibility. However, within this draft restoration plan and EIS, other alternatives include a metric for usage; for example, the Fort Morgan Beach Access Project gets a specific projection of user days. 10 There is no factual basis for the assertion that the convention center lodge will make up for any lost user days, or even that it will enhance the visitor experience. This is a violation of both NEPA and the Oil Pollution Act. In the NRDA process, trustees are required to create a plan for the restoration, rehabilitation, replacement, or acquisition of the equivalent, of the natural resources under their trusteeship. 11 NRDA regulations require that compensatory restoration provide services of the same type and quality and of comparable value as those injured. 12 If actions of the same type, quality and value are not available, then the Trustees should employ actions that provide natural resources and services of comparable type and quality as those provided by the injured natural resources. 13 According to the Trustees explanation in Early Restoration Plan, [t]he spill led to large numbers lost and degraded beach trips over the course of many months as well as lost fishing trips and oyster harvesting due to closure of waters 14 and [t]he State currently anticipates that the ongoing analyses will show the oiling of Alabama s coast caused losses in beach use, fishing and boating that number in the millions of user- days. 15 According to the DEIS, projects such as public education programs, public beach access, public restrooms and post- beach shower facilities, a bike share program, and a public tram system, can be reasonably anticipated to provide services of the same type and quality and of comparable value as those injured. 16 It is actually evident that the hotel and convention center is meant to compensate for economic, not natural resource, concerns, 17 and is unrelated to the recreational services lost due the oil disaster. The 7 Case 1:15- cv CB- C (S.D. Ala.) 8 See PEIS- ERP at section (Oct 2014) 9 See Draft RP- EIS at (Dec 2016) 10 See Draft RP- EIS at (Dec 2016) U.S.C. 2706(c) C.F.R (c)(2) C.F.R (c)(2). 14 PEIS- ERP at section , p. 55. (Oct 2014) 15 PEIS- ERP at section , p. 56. (Oct 2014) C.F.R (c)(2). 17 See e.g., Gulf State Park Hotel and Conference Center Initiative FAQ, questions 1, 2 and 18, available at ( Our plans are to build a first- class facility January 30,

5 Governor of Alabama has candidly explained that a major purpose of the project will be to generate revenue that will go to other less- visited parks, including in areas of the state completely unaffected by the Spill. 18 The conclusion that the project is economically motivated is bolstered by the Coastal Recovery Commission of Alabama s project description, released in 2011, which stated that the project would not qualify as oil spill mitigation. 19 Far from addressing BP oil spill natural resource injuries, the hotel and convention facility appears calculated to address a different, unrelated injury entirely: the budget shortfall suffered by the State of Alabama and its parks system. These comments are particularly troubling since they indicate that the Alabama Trustee predetermined the outcome of the NEPA process. In fact, the state of Alabama has made numerous comments to these effects, which are cited in the scoping comments supplied by the Southern Environmental Law Center on August 5, 2016, and incorporated here by reference. This is a violation of NEPA s fundamental purpose, and a grave disservice to the public. E.g., Int'l Snowmobile Mfrs. Ass'n v. Norton, 340 F. Supp. 2d 1249, 1261 (D. Wyo. 2004) Building a hotel and conference center simply does not restore beach use, fishing or boating lost due to the BP oil disaster. The project thus fails to meet the basic requirements for a loss of use project. The outcome of this process was clearly predetermined, which invalidates the NEPA process. The TIG should reject it as a candidate for Alabama s recreational use NRDA funds. D. Building a Hotel and Convention Center will Further Deny Access to the Beach by Residents of Limited Means Further, the hotel and convention center would not make the public whole, because it would create further cost barriers to accessing public coastal resources. 20 The project has described the Gulf State Park as an attraction that is primarily used as a retreat and recreational area. Gulf State Park is one of the few areas along the Alabama Coast that provides access to the general non- paying public. Public access to Baldwin County s public beach is already extremely limited. There are few free public access points in Orange Beach and Gulf Shores. The proposed project will reduce what little access currently exists, because the proposed hotel and convention- center facility 21 will likely only be available to that will bring dollars and jobs to Alabama and be a great addition to our State Parks. Alabama s Gulf State Park is one of our state s greatest economic and environmental assets. We have the opportunity to bring a first- class hotel to Alabama. The lease payments from the developer will yield considerable cash flow to DCNR... Also, there will be additional revenue from increased lodging taxes, increased sales taxes and increased jobs. The total economic benefit of the project is expected to bring in approximately $65 million annually and produce nearly $3 million each year in total tax collections. ). See also, Gulf State Park Convention Center project submission, us- your- ideas/view- submitted- projects/; Strategic Advisory Group, Events Center Feasibility Study: Alabama Gulf Coast, Final Report (30 July 2001). 18 Office of the Governor, June 28, 2016 Press Release, supra ( The Legislature has had difficulty adequately funding the state park system, and the fees Gulf State Park will bring in once it has been redeveloped will be a godsend to financially beleaguered parks throughout the state, Bentley said. ) 19 Coastal Recovery Commission Infrastructure Subcommittee, Gulf Coast Convention Center (5 Feb 2011) at p. 3, available at content/uploads/2011/02/05gulf- State- Park- Convention- Center.pdf C.F.R ( The goal of the Oil Pollution Act of 1990 (OPA), 33 U.S.C et seq., is to make the environment and public whole for injuries to natural resources and services ). 21 The only part of the rebuilt Lodge and Conference Center available to members of the public who are not guests at the hotel is a publicly accessible interpretive landscape that includes preservation of an existing wetland and remnant scrub dune, creation of an inter- dunal swale for storm- water management, and creation of secondary and scrub dune habitat. January 30,

6 paying guests, and the cost of access can reasonably be expected to be considerable given the average price for lodging at a beach- front location in the area. Even if accessible, the transition from free to paid parking will limit current access to Gulf State Park by those who cannot afford to added cost. The claim that a lodge is necessary to make it more accessible does not hold weight. The Pinkowski report states that the Lodge could garner an anticipated 84,315 visitor nights per year; however, these are not specified to be new visitors. 22 In addition, this is 40,000 off of the original projection in the Programmatic EIS. While the restoration plan and EIS indicates that Gulf State Park lacks access points, 23 the Trustees fail to include an alternative that would provide additional, free public access alternatives in other areas and/or without the construction of a private lodge/facility, which would better serve Alabama s public. In light of these numbers, the projected numbers do not support the claim of increasing or restoring public access, or short- term lodging/user days. If the Trustees truly want to increase the public s access to Alabama s beach environment to accommodate additional visitors, projects such as land acquisition should be a priority. Finally, the draft restoration plan and EIS examines a revenue sharing agreement with the operator. This relates to the claim that the hotel will generate support for the public access amenities. 24 The Trustees fail to provide an analysis of the revenues and how they will be allocated. Within its analysis, Pinkowski has a projection of free cash to service debt, without explaining what net profit would be available after the operator gets paid. 25 The projections are also some form of earning before interest, tax, depreciation, and amortization which fails to provide a true financial picture of what the property would produce, despite the indication (see GSP proposed five year financial projection) that the hotel could supports itself with private financing. 26 II. Projects Meriting Review for Recreational Loss of Use As the Trustees considered projects for recreational loss of use funding in Alabama, there are numerous projects across Mobile and Baldwin Counties that would restore the injuries experienced in Alabama. 27 The alternatives analysis should have focused on identifying a project, or suite of projects, that would provide the same compensation for loss of use as the proposed hotel and convention center. Considering Alabama s lack of public beach access, the acquisition of beach property, recreational facilities, or public access points could reasonably provide the same measurable outcome. In fact, there are a number of projects (or suites of projects) that have been proposed that could meet the same recovery metrics and benefit a broader set of the impacted public. By only considering the Lodge and Convention Center, the Trustees actions are clearly contrary to the spirit and letter of NEPA. We must avoid implementing projects that risk doing more harm than good. 22 See Draft RP- EIS at 3-5. (Dec 2016) 23 See Draft RP- EIS at 3-6. (Dec 2016) 24 Ibid. 25 See Draft RP- EIS at C- 9. (Dec 2016) 26 See Draft RP- EIS at C- 61. (Dec 2016) 27 NOAA, Gulf Spill Restoration Project Portal, see Gulf State Park. us- your- ideas/view- submitted- projects/. January 30,

7 For example, these projects found in the Alabama Coastal Restoration portal 28 would meet the criteria for recreational loss of use: Project 79 Aloe Bay Harbour Town (Mobile County) Project 82 Dauphin Island Audubon Bird Sanctuary Shoreline Restoration and Management (Mobile County) Project 102 Alabama Audubon Coastal Bird Stewardship Program (Baldwin/Mobile County) Project 111 Spanish Fort Ecological Park (Baldwin County) Project 174 USA Coastal and Environmental Sciences Initiatives (Mobile County) Project 177 Hog Bayou Campground (Mobile County) Project 188 Coastal Sustainable Tourism Laboratory (Baldwin County) Project 199 Bayfront Park Restoration Improvement (Mobile County) Project 200 Chickasabouge Park Habitat Restoration and Enhancement (Mobile County) Project 210 Infrastructure Improvements of existing park and green spaces (Mobile County) Project 233 D Olive Creek Property Purchase, Habitat Study, Nutrient Removal Research/Education Facility (Baldwin County) Project 240 Delta Port Marina Oysterman Support Dock (Mobile County) Project 266 Perdido Watershed Access Improvement (Baldwin County) In addition to these specific projects, other recreational projects that would meet the needs of the community include land acquisition for public access, living shoreline and artificial reef projects, fishing access piers and boat launches, fishery programs and other park enhancement and educational opportunities across Alabama s coastal zone. In Early Restoration, the Trustees stated that it is challenging to choose a recreational use restoration project large enough to provide a significant contribution towards compensating for the recreational use losses in Alabama. 29 We wholly disagree, and the above- listed project proposals demonstrate that there are a variety of options to restore recreational use losses. Moreover, many of these projects would compensate for loss of use by a broader, and more diverse users. However, if the Trustees truly believe that no appropriate project or suite of projects exists at this time that would appropriately to compensate for the lost recreational uses experienced in Alabama, then a no- action alternative is the appropriate choice at the current moment. III. Conclusion We recognize that the Trustees have invested significant time and resources throughout the NRDA restoration process and appreciate your efforts. While we understand the desire to fund and implement projects on the ground, the current analysis is incomplete and legally inadequate. This is clearly contrary to the spirit and the letter of NEPA. Let s ensure that we do what is right and just for the Gulf Coast. 28 Alabama Department of Conservation and Natural Resources. Project Suggestion Portal 29 PEIS- ERP, Section , p. 57. (Oct 2016) January 30,

8 Thank you for the opportunity to comment. If you have any questions, or if you would like to discuss these comments further, please contact Jordan Macha, Senior Policy Analyst for the Gulf Restoration Network, at: or (512) Sincerely, Cynthia Sarthou Executive Director Gulf Restoration Network January 30,