Local and Federal Negligence Enables Environmental Crime in the Bahía Jobos Reserve in Salinas

For decades, an environmental crime has been taking place in the Bahía Jobos Reserve in Salinas before the eyes of many and implicates multiple branches of the government of Puerto Rico and the federal government that have been consistently negligent in carrying out their duties, an investigation by the Center for Investigative Journalism (CPI, in Spanish) revelead. 

The matter at hand is the illegal occupation and construction, the deforestation of mangroves, the filling of wetlands and the sanitary discharges to the sea in an area of the high ecological value of the terrestrial maritime zone.

There is a conflict over the land ownership where the reserve is located. To date, there is no study related to the title for the land, where there are occupants with deeds that refer to the 1898 Treaty of Paris, Department of Natural and Environmental Resources (DRNA, in Spanish) Secretary Rafael Machargo confirmed in an interview with the CPI.

The Jobos Bay National Estuarine Research Reserve, whose 2,800 acres belong mainly to the DRNA, was acquired with funds from the National Oceanic and Atmospheric Administration (NOAA) and has been managed with federal money since 1981, so there is joint jurisdiction over it. It is the only one of its kind in the Caribbean and one of only 29 in the United States and its territories.

Environmental harm in the Reserve area began as early as the 1970s, ramped up in the 2000s, and sped out of control between 2017 and 2020, according to aerial photos and testimony obtained by the CPI.

When Machargo was asked why he and his predecessors in the DRNA did not call on the Puerto Rico Police to stop illegal deforestation, landfilling, and construction, he justified himself by saying that the activities happened late in the afternoon, at night and past midnight. The mayor of Salinas — a municipality in southern Puerto Rico—, Karilyn Bonilla, who admitted to knowing about it since she took office in 2013, said she does not have jurisdiction and that she referred the matter to the DRNA.

“Obviously,” Machargo responded when the CPI asked him if he considered that all the municipal, local, and federal agencies concerned had been negligent in fulfilling their duty in this case. Machargo, who has been telling several media outlets since last week that he would cut off basic services to the “land invaders” and take them to court to evict them from the area, changed his tone on Tuesday during the interview with the CPI and accepted that he is not able to do either of those things now. He insisted that since he took office in September 2020, he has taken action to solve the case.

“The ownership of that property is very complex to determine who the invaders are and who has ownership,” said a source who participated in the investigation aspect of the case and spoke on the condition of anonymity.

In the area, both within the limits of the reserve and on the outskirts, there are historical communities, such as the fishermen of Las Mareas and people who arrived later, in the 1990s, who insist that they own or have the right to use the land. So, not all the disputed area belongs to the DRNA.

But the responsibility to keep an eye on the rules of use and construction in the area that is ecologically sensitive, both within the reserve and outside, falls on the DRNA and several local and federal agencies, said former vice president of the Planning Board (JP, in Spanish), Pedro Cardona Roig.

One of the community’s claims is precisely that they have been deprived of their participation in the reserve’s conservation and management plans, said Roberto Thomas, coordinator of the Iniciativa de Ecodesarrollo de la Bahía de Jobos (IDEBAJO, in Spanish), a community-based organization that has been working in the area for the past decade. Fishermen and the people of the community are the most affected by the situation and who have denounced the problem in different forums.

In January, the CPI revealed the magnitude of the deforestation, the filling of wetlands, and the illegal construction on the coastline of Bahía Jobos, based on aerial photos and videos, as well as complaints from community members and fishermen.

Federal agencies, such as the US Army Corps of Engineers (USACE) and the US Department of Justice, have been aware of illegal construction in the area since 1972, when they brought a first cease and desist case against a dozen people, and they got a ruling in their favor. However, neither USACE nor the US Department of Justice followed the procedures to enforce the order, as three CPI sources linked to the legal process confirmed. The case has a court order from June 22, 1981, from then federal judge Hernand Pesquera. The federal prosecutor was Raymond L. Acosta.

The USACE did not agree to an interview with the CPI and limited itself to stating that they are “aware of the alleged unauthorized fill and structures within Bahia Jobos Sanctuary Reserve. However, the Corps does not comment on ongoing enforcement matters.”

Deforestation, landfilling and illegal construction — some with sanitary discharges directly into the sea — continued for another 34 years until in 2015, when former DRNA and current regional director of the US Environmental Protection Agency (EPA), Carmen Guerrero, filed a cease and desist order, which imposed hundreds of thousands of dollars in fines and mitigation actions on three individuals for failure to comply with several environmental laws, including Guillermo Godreau Veguilla, son of attorney Guillermo Godreau Marrero, one of those implicated in the original USACE case. CPI sources said Godreau Marrero was murdered in 2006. An attempt was made to obtain Godreau Veguilla’s version of the story, but the CPI got no response.

Guerrero also commissioned a full analysis of the area that was completed and serves as the base for the reserve’s management plans that have been presented successively.

Since then, the USACE, the NOAA and the Puerto Rico Department of Justice knew that the DRNA required the involvement of the Puerto Rico Police, the Federal Bureau of Investigation (FBI) and even Drug Enforcement Administration (DEA) — because of allegations of activities linked to drug trafficking in the area — to intervene with the trespassers, but nothing happened, the sources said. Guerrero left the post in May 2016 and Julio Méndez remained in her place as interim secretary until January 2017, when then-governor Ricardo Rosselló Nevares appointed Tania Vázquez.

But the CPI saw that Vázquez received an offer from Godreau Veguilla’s lawyer for a $3,000 fine. She sent the offer to the case’s evaluation committee, which accepted it in December 2019, one month after Vázquez left her post at DRNA, according to an internal document. A CPI source said the fine was never paid.

The illegal constructions not only remained in place, but expanded significantly during her administration, as the CPI observed in aerial photos.

In written statements sent to the CPI, Vázquez alleged that during her tenure she took “all possible steps to work with the situation that was happening” and said she did not remember having settled the case. Machargo, who knew that he would be interviewed on this matter, insisted that he did not have the information on the case at hand and that he had to look for the details.

Vázquez said that on April 10, 2017, she sent a letter to NOAA, addressed to Jeffrey L. Payne, explaining the situation going on in reserve. “The letter included a chronology of events since 2015. In that letter, we requested help from them (NOAA) and through them, the US Army Corps of Engineers to work on the situation since there is shared jurisdiction,” she said.

NOAA made its assessment and, in 2018, published a report documenting the damage and ordering the DRNA to present a plan in six months to eliminate the illegal structures in 18 months and mitigate to restore the land to its natural condition.

Vázquez assured that she complied with NOAA by delivering that action plan in 2019. The lawyer did not clarify why she did not proceed with the demolition of the illegal structures and begin the mitigation in a period not exceeding 18 months, as required by the report. In the plan, the DRNA recognizes that it has only one guard assigned to ensure compliance with the regulations in the reserve and its waters. The director of the Bureau of Coasts, Reserves and Refuges at the time was Idelfonso Ruiz, the same official who later went to the Permits Management Office (OGPe, in Spanish) and intervened in the case of the illegal permit granted in the maritime-terrestrial zone of the Sol y Playa condominium in Rincón in the West coast.

Meanwhile, NOAA Spokeswoman Alison Gillespie told the CPI that “they remain concerned about illegal activities and the resulting impacts on the ecosystem and the reserve and will continue to monitor progress through these periodic meetings until this problem is resolved and a restoration plan is established.

She did not specify what actions, if any, the federal agency took to ensure that the DRNA complied with its order. She limited herself to saying that NOAA “has been meeting periodically with the secretary of the DRNA and other representatives of the government of Puerto Rico, while the DRNA takes legal action to remove illegal development.”

Vázquez did not explain why she did not go immediately to the police to stop the construction. She only said that during her tenure “multiple communications were sent and interagency meetings were convened to work on the problem as a united front.”

Vázquez also referred to a letter she sent in 2019 to the Department of Justice, then headed by Wanda Vázquez — who months later became Governor — to investigate the matter. The Department of Justice requested additional time to answer the CPI’s questions, but from the onset, they said these are issues “overseen in years prior to when Domingo Emanuelli Hernández assumed the position of Secretary of Justice” last year.

“Multiple state agencies were contacted, such as the Puerto Rico Electric Power Authority (PREPA), the Puerto Rico Aqueduct and Sewer Authority (PRASA), the Municipality, and the Department of Justice, among others. Since we had information that many of the houses built had water and electricity meters, intervention by other agencies was necessary. It is important to note that the DRNA, which is an executive agency that is not a legal entity, must be represented in the eviction processes by the Department of Justice,” said the former Secretary of Natural and Environmental Resources.

PREPA and PRASA directors told the DRNA in separate written statements that the services were connected because people presented the proper permits. Machargo told the CPI he believes that the permits are illegal and that he hopes that Justice will investigate the case. He also said, “if the water and electricity corresponding to those permits have not been cut off, there are people who have not done their job.”

On September 22, 2020, Machargo sent letters to PREPA and PRASA requesting the suspension of electricity and water service. Neither of the public corporations complied with  Machargo’s request because when they verified the information from the meters, both PREPA and PRASA found that the clients in whose name the service appears presented the documents required by the Permit Management Office, such as use permits and electrical certification.

Neither LUMA Energy — a consortium that in 2021 assumed PREPA’s power distribution — nor the public corporation agreed to a request from the CPI to review those files arguing that the cases are under investigation.

The CPI questioned Machargo if the DRNA was also negligent in not taking action to stop the deforestation of mangroves and construction, which accelerated starting in 2017, as several people from the communities surrounding the reserve preferred to remain anonymous confirmed.

“I can take responsibility for the work that we have been doing since I arrived at the Department,” he said, referring to the fact that he was appointed to the position in September 2020 by then-Governor Wanda Vázquez.

Machargo, lawmakers and Mayor Bonilla have been active in the media since last week calling for electricity and water to be cut off to the alleged trespassers who they insist are the perpetrators of environmental crimes.

When confronted with the findings of the CPI investigation, Machargo changed his discourse, acknowledging that the case is more complex and that he must wait for the González López & López Adames law firm — which he hired on January 20, 2022 — to finish a title study and have the Department of Justice investigate use permits.

Machargo said although there are use permits for lots that are part of the reserve, he will investigate their legitimacy.

In January, the mayor of Salinas told the CPI that the Regional Permits Office, which is part of the CCVS Consortium — comprising the municipalities of Coamo, Cayey, Villalba and Salinas, according to the Planning Board’s transfer agreement — has not endorsed or issued permits in that area.

But upon reviewing the 19 permit procedures available on the Single Business Portal (SBP) — a digital platform where digitized permits are archived in OGPE — the CPI found at least eight applications and permit procedures for land within the Bahía Jobos Estuarine Reserve that appear as evaluated by the CCVS Consortium.

Engineer César Rodríguez Quiñones, director of the CCVS Consortium Regional Permit Office, said that of those permits processed, his office approved only one and it was an authorization to rectify the capacity of the reserve that the DRNA requested in 2017.

A use permit was approved for the area in 2019 that appears under the CCVS Consortium. Rodríguez Quiñones says that OGPE includes the name of the consortium in that file because it is a permit processed for a municipality that is part of the regional entity. However, he assured that this use permit, which was requested by Miguel Flores Torres, was not evaluated, or approved by the CCVS Consortium, but by a person authorized by OGPE, named Ángel Rodríguez.

According to Rodríguez Quiñones, the rest of the permits that appear in the SBP were archived because the applicants did not pay the processing fee ($100) and, in one of the cases, the proponent did not present an endorsement from the municipality of Salinas.

Mayor Bonilla gave the same version and provided evidence that, although a permit appears in the OGPE system as if the CCVS had granted it, it was generated through the system by a private person authorized by OGPE, who issues the permit as if he were a government official attesting that the project and the property are in full compliance with the law. Bonilla referred this case, processed by an engineer identified in the document as Ángel Rodríguez, to the Planning Board for audit following the public complaint by Rep. Mariana Nogales in March, she said. She insisted that she cannot take any further action because the law does not empower her to do so. Ivelise Prado, special assistant and press officer of the JP, confirmed to the CPI that the agency has an audit referral requested by the director of the Salinas Territorial Planning Office of the CCVS Consortium on March 16, 2022, to investigate a use permit in the reserve.

Nogales presented a resolution for an investigation in February. In 2018, the Legislature had already launched an investigation by Rep. Manuel Claudio, who conducted an in-person visit and submitted recommendations to the DRNA, but there is no file in the Legislative Processing System because he did so under a generic resolution that was used to address multiple issues in a district, said Rep. Luis “Narmito” Ortiz Lugo, who also told the CPI that the agency, under the direction of Tania Vázquez, promised to investigate, but so far, he has not received a report.

Cayey Mayor Rolando Ortiz, who chairs the Board of Mayors that preceded the CCVS Consortium, which evaluates the permits for the municipalities of Cayey, Coamo, Villalba and Salinas, explained that the mayors determined that they will not intervene directly in the evaluation of the permits processed for each municipality. He said each municipality made three employees available — an inspector, a technician, and a secretary — for the consortium to evaluate, endorse, approve, or deny permits for the towns. Each municipality evaluates the permits and the final approval rests with Rodríguez Quiñones.

However, the Salinas municipality insists that the entire process is virtually academic in many cases because of Act 160 of 2009, signed by former Gov. Luis Fortuño, which empowered individuals authorized by OGPE to issue permits from their private offices without going through the evaluation process. The decision of these authorized professionals is the only thing that is needed to establish that the project meets legal and regulatory requirements, said Attorney Luis Vázquez, advisor to the mayor of Salinas. No one audits them unless a complaint is submitted to the Planning Board, the entity in charge of auditing this type of permit.

“The authorized professionals are like a permitting office themselves. They can issue permits as if they were a permit office and it does not go through the municipality. That was what happened in this case,” said Vázquez, pointing out that this is a limitation for the municipalities since the system does not even notify them of the permits issued in their jurisdiction.

Machargo vowed that the environmental damage in reserve would be stopped and reversed and that he would get it done. He estimated that it will take $4 million and four to five years to return the area to its natural state. He accepted that he does not know when this process will begin, nor who will pay for it.