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Update: The Ontario Securities Commission has
now brought an action against Canyon, HEIR, Marco Caruso,
Brent Borland, founder and CEO of Canyon, Wayne Robbins,
President of Canyon, Placencia Estates Development, Ltd.,
Copal Resort Development Group, Rendezvous Island Ltd, The
Placencia Marina, Ltd and The Placencia Hotel and
Residences, Ltd. for
violation of Ontario's securities laws.
A hearing on the charges is scheduled for 11 October 2011 and
the defendants face possible penalties of up to
$1 million in fines per entity and person, to disgorge all
amounts received as a result of noncompliance and such other
orders as the Ontario Securities Commission deems
appropriate. |
Update: Justice Legall
dismissed PCSD's case against DOE for its approval of the Placencia
Marina. However, PCSD intends to appeal the decision. .
Documents filed in connection with this lawsuit:
The developer of this 300 slip marina for which
the National Environmental Advisory Committee (NEAC) recommended
approval on 24 February 2010 is
Placencia Marina, Ltd., a Belize limited liability corporation owned
by Romas, Ltd., a British Virgin Isles company. One of the
principals of the developer is Marco Caruso, who is also part owner
of Copal Beach, The
Placencia Hotel and Residences, the under-construction
Placencia Airport on the northern end of the Peninsula and
Rendezvous Caye.
Mr. Caruso also owns Rio Mayo Construction Company, which has
constructed the Placencia Hotel and Residences, and is currently
constructing Copal Beach Resort and the Rendezvous Caye resort.
The Placencia Marina will be built
on 60 acres off the northern coast of the Peninsula between The
Placencia Hotel and Copal Beach. As shown above, the Marina will
include a 500-700 foot pier connecting it with the Peninsula, will
accommodate boats of up to 200 feet in length, and will be surrounded by
a solid breakwater with culverts, which the developer maintains will
prevent the marina from causing erosion to beaches south of the marina.
The Marina will employ a maximum of 20 people.
NEAC recommended approval of the marina despite not
receiving two studies that NEAC minutes state were critical to the
decision by NEAC on whether to recommend approval of the marina.
Incredibly, the
minutes of NEAC meeting in which approval was recommended
suggest requiring the developer to do the studies AFTER approval is
granted, as part of the conditions of the Environmental Compliance
Plan for the project. This decision by NEAC essentially stands
the EIA process on its head if NEAC can recommend approval of a
project without necessary studies. It further establishes a
dangerous precedent for future projects which can argue that tests
required by DOE can be done AFTER approval rather than before, based
on the NEAC marina decision.
On 16 February 2010, PCSD received a copy of a
letter dated 12 February 2010 from Mr. Ismael Fabro, the Chief
Environmental Officer of the Department of the Environment (DOE)
under the People's United Party, to Mr. Martin Alegria, Fabro's
successor under the United Democratic Party.
In his 12 February letter, Mr. Fabro asked DOE and
the National Environmental Advisory Council (NEAC) to waive their
requirement that bathymetry and modeling studies be performed before
approval or disapproval of the Placencia Marina.
Mr. Fabro instead asked that DOE and NEAC require
the bathymetry and modeling studies to be done AFTER approval, as a
condition of the Environmental Compliance Plan for the Placencia
Marina.
Fabro's reasons for making his request:
-
Getting the equipment to do the bathymetry and
modeling into the country would take too long and the
developer's investors would lose confidence through this delay; and
-
DOE had not required Ara Macao to perform
bathymetry and modeling studies even though the marina was much
larger (64 rather than 60 acres and 400 boat slips rather than
300 boat slips). (Note: Mr. Fabro was the Chief
Executive Officer when Ara Macao went through its EIA process.)
Bathymetry studies have been required since the
initial Terms of Reference for the original EIA in July 2009, but
were not provided in the original EIA. Two supplemental EIAs
have been completed since the original EIA, one in December 2009 and
one in February 2010. The lack of bathymetry and modeling
studies were specifically given as a reason for denial of the Marina
EIA in the January 2010 minutes of NEAC - also forwarded anonymously
to PCSD on 16 February 2010.
In the December 2009 EIA supplement, Mr. Fabro
claimed that the bathymetry and modeling studies were impossible to
perform for the proposed Marina site due to lack of necessary data.
PCSD's letter to DOE about Mr. Fabro's letter is
provided below.
In addition to the issue of the bathymetry and
modeling studies identified by NEAC, PCSD opposed Marina approval for
several reasons, among them the following:
-
The inability of the Peninsula to support over 950 boat slips -
700 within 3 miles of each other - the second marina being the
approved 400 slip Ara Macao marina. The amount of boat traffic
generated by this number of boats would overrun fishing grounds,
greatly over-tax marine protected areas, destroy vitally important
seagrass beds, coral and other marine habitat, and ruin the
aesthetics that draw tourists to the Peninsula.
- The cumulative impact of a 300-slip marina,
approximately 500 hotel rooms, a casino and a golf course within a 5
mile area has not been assessed and is likely not sustainable for
the area's infrastructure (particularly garbage, sewage, roads,
police and fire protection and health care) and its eco-systems,
specifically its effects on the Placencia Lagoon and the Caribbean
Sea.
- The environmental sustainability
promised by the EIA and Supplemental EIA for the Marina relies
solely on self-monitoring by the developer. Given developers'
history of compliance with the terms of ECPs for other projects,
predicating approval of this Marina on self monitoring is a disaster
waiting to happen. If the marina is approved, the developer should
be required to pay a yearly fee for independent monitoring and
testing in an amount sufficient to pay a top-quality firm for these
services. As usual, monitoring results are intended to be kept
private and away from the eyes of the public, which is not only
wrong, but can jeopardize the health and welfare of the public.
-
Section 9.2.2 of the Supplemental EIA states
that "[a]t a depth of 9-10 meters the upper layer
consisted of very fine silt and showed for the presence of a few
small shells (C of Plate 9.1)"
Therefore, silt curtains will not effectively
prevent siltation of areas outside of the area bounded by silt
curtains, but will instead allow silt to disperse to other areas,
endangering coral and seagrasses.
As explained by the US Army Corps of Engineers,
“[w]hile the curtain provides an enclosure where some of the
fine-grained material may flocculate and/or settle, most of this
fine-grained suspended material in the water column escapes with the
flow of water and fluid mud under the curtain.
Whereas properly deployed
and maintained silt curtains can effectively control the
distribution of turbid water, they are not designed to contain or
control fluid mud.” (Silt
Curtains as a Dredging Project Management Practice, ERDC
TN-DOER-E21 Sept.2005.
- The February 2010 Supplemental EIA finally
identified the Placencia Lagoon as the source of the 100,000 cubic
yards of sand needed to fill the geo-tubes from which the Marina
will be constructed. Absolutely no studies were done on the effects
this dredging will have on the Lagoon and the aquatic life in the
Lagoon - not to mention that the location of the dredging was
withheld for 6 months after the original EIA was submitted.
Further, the February 2010 supplemental EIA states that Mr. Caruso
will dredge his "own property" in the Lagoon. Private individuals
cannot own under-water land in Belize.
- Submitted plans do not provide the exact position
of the Marina.
- The size of the Marina was miscalculated or
misstated – the EIA Addendum says the Marina is 34 acres, while it
really covers about 60 acres when the breakwaters are included in
the measurements.
- Submitted plans and maps for the Marina were not
done to proper Belize engineering standards because no Belize
engineer was involved in the planning.
- Soil at the Marina site was not tested, meaning
the Marina might be unsafe and could subside (collapse).
- The source and quantity of water for the Marina
(and Copal Beach) was not determined, nor was the quality of the
water tested to determine whether it’s fit for drinking.
- The EIA and its Addendum are generic and not
specific to the Marina; sections of the Marina EIA and Addendum are
just copied from other EIAs.
- Boating routes and navigation evaluation missing
from submitted documents – especially with respect to the ability of
the 200 foot boats to maneuver within the Marina.
To no one's surprise, DOE approved the Marina and
signed an environmental compliance plan on 6 April 2010. And, the
ECP did not follow the recommendations of NEAC.
The ECP also authorizes construction of a pier as a "pilot project."
We also understand that the ECP has been amended to allow the developer
to construct the pier out of rock, which is now being dumped
continuously into the seabed in the area of the pier (as shown below).
We have not been able to get a copy of the amended ECP from DOE.
Rocks
dumped in Sea for Placencia Marina Pier
And, in addition to approving the Marina, the Marina
ECP also approves:
-
A 50-room boutique hotel;
-
Fitness center
-
Casino
-
Commercial retail area
-
Parking area
-
Amenity areas for pools, bars, "etc."
-
Public utilities area along the Placencia Lagoon.
None of the above land based components were included
in the Marina ECP. Therefore, calculations of water usage, sewage
and waste production and other similar factors in the ECP do not include
the hotel, the casino and the other land-based components improved in
the ECP. Nor were public comments solicited for these land based
components.
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