Weak Planning Process Frustrates Protection of Puerto Rico's Threatened Coastline

Author:Mark Borak
Position:J.D. candidate, May 2013, at American University Washington College of Law
23FALL 2011
by Mark Borak*
For over a decade, conservationists in Puerto Rico have
waged a constant battle to gain legal protection for one of
the island’s most ecologically sensitive natural resources.1
Thanks in part to its location on a picturesque stretch of coastline
near its capital, San Juan, a swath of undeveloped land known
as the Northeast Ecological Corridor (“NEC”) has come under
constant threat of large scale development.2 Aside from its stun-
ning view of verdant hills descending from El Yunque National
Forest to the pristine shoreline, the corridor harbors a seven
mile long sandy beach, a bioluminescent lagoon, mangrove for-
est, and habitats for over fifty rare, threatened, endangered and
endemic species—including the leatherback sea turtle.3 The crit-
ically endangered leatherback returns each year to nest on the
beach, which is one of only three significant nesting sites left in
the United States.4 Leatherbacks are especially vulnerable to the
effects of development activity such as beach renourishment and
artificial lighting.5 In response to a petition from the Sierra Club
in August 2011, the U.S. Fish and Wildlife Service expressed
its intent to review and revise the designated critical habitat for
the leatherback, and possibly add the NEC as a critical habitat.6
This review process, however, will likely take several years, and
would only afford protection from Federal actions, leaving the
NEC vulnerable to private development.7
During the administration of former Governor Aníbal Ace-
vedo Vilá, concerned residents, fisherman, and environmental
activists formed the Coalition for the Northeast Ecological Cor-
ridor (“Coalition”), which successfully swayed the former Gov-
ernor to designate the area as a nature reserve.8 Acevedo Vilá’s
order prohibited the planned development of large-scale Mar-
riott and Four Seasons golf resorts in favor of less invasive uses
centered on eco-tourism.9 However, once Vilá’s term expired in
2009, his successor Governor Luis Fortuño abruptly rescinded
the nature reserve designation and pushed through a new plan
that allows large scale residential, commercial and tourist
development.10 After a decade-long citizens campaign finally
secured protection for the corridor, there was no effective check
to prevent the new administration from reversing the order and
further hampering conservation by changing the planning and
permitting process in order to encourage more development.11
Among the first actions that Fortuño took upon entering
office was to create a new agency to handle construction per-
mits, which promises to process most permits within ninety days
of receipt regardless of their complexity.12 With the stewardship
of several officials who had direct ties with local developers, the
new development plan for the corridor was shuttled through the
planning process with minimal opportunity for review or public
comment.13 This new plan, dubbed the Great Northeast Reserve,
cobbles together tracts of existing parkland and retains some of
the originally protected areas, but omits over 430 acres that were
protected under the previous designation and permits extensive
development in the heart of the corridor.14
While representatives from the Coalition contend that the
new plan falls far short of conservation and are backing a Puerto
Rico Senate bill to reverse it, the deeper issue is the manner in
which it was approved.15 After limited opportunity for public
review, the plan gained rapid approval by the Puerto Rico Plan-
ning Board (whose Chair and four other members were appointed
by Fortuño) and the Department of Natural and Environmental
Resources (whose Secretary consulted for a private development
project that was included in the new plan).16 The Tourism Com-
pany (whose Director of Planning and Development prepared
the Environmental Impact Statement for one of the developers)
and the Department of Economic Development and Commerce
(whose principal officer in charge of strategic project develop-
ment served as construction manager for one of the proposed
resorts) both assented to the plan after limited review.17
These direct conflicts of interest demonstrate how Puerto
Rico’s land use process has succumbed to regulatory capture, a
condition in which industries most affected by regulation exert
a disproportionately large amount of influence over the regula-
tory bodies meant to keep them in check.18 Aside from the harm
this bias toward rapid development does to responsible land use
planning, the situation can also have a detrimental effect on the
economic growth of the island, and even on real estate devel-
opers themselves.19 Agency officials’ current favoritism toward
developers is largely a result of the pro-development Governor’s
ability to place sympathetic officials in key agencies. Likewise,
the future election of a populist, anti-development Governor
could result in a sharp reversal of fortunes and a chilling effect
on development. Additionally, the Fortuño administration seems
to have overlooked the fact that the NEC in its natural state is
both an ecological haven and a tourist attraction that cannot be
replicated elsewhere, which makes it an integral asset to the
long-term viability of Puerto Rico’s tourism industry. In the long
run, political instability and unpredictable development policies
satisfy neither the environmentalist nor the real estate developer.
Such has largely been the experience of Puerto Rico’s land
use planning process–repeated attempts at solidifying a predict-
able land use scheme have been frustrated by countless excep-
tions and orders circumventing the process.20 Furthermore,
* Mark Borak is a J.D. candidate, May 2013, at American University Washington
College of Law.
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