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CZM

Coastal Zone Management Commission is above the Department of Planning and Resources (DPNR)
in representing NOAA and protecting our water in the Virgin Islands

DPNR is Not Testing our Coastal Waters; it’s Unbelievable, but true

 

Here is an excerpt from the 2010 USVI Integrated Water Quality Monitoring & Assessment.  I know its 2013 and we are not sure if DPNR has done anything for 2012 yet.  DPNR is supposed to be performing water quality monitoring for both the EPA and NOAA.  Why has the EPA and NOAA failed to demand water quality testing in the Virgin Islands?

 

To get the full document, so you can read it yourself, here is the link from GreenerVI.  Go to page 78 for the summary.  Please be patient, it is a large PDF document and takes a while to load.

 

PLEASE NOTE: THE SALT RIVER BAY NATIONAL HISTORICAL PARK IS ALSO CLASS A- IS IT NOT? YET IT IS BEING BADLY AFFECTED BY THE LBJ/FIGTREE BYPASSES. SANDY POINT AND POINT UDALL ARE ALSO UNDER CLASS A, ARE THEY NOT?

 

PLEASE NOTE: If you scan down and at least review the bolded areas starting on page 78,  this report is illuminating.  Susan

 

 

The 2010 USVI Integrated Water Quality Monitoring & Assessment

Report intends to satisfy the USVI requirements of the Federal Clean

Water Act Sections 305(b) and 303(d).

 

Submitted by:

Department of Planning &Natural Resources

Division of Environmental Protection

St. Croix (340) 773-1082

St. Thomas (340) 774-3320

 

Page 78-

 

4. Toxics/biological monitoring

 

No monitoring for toxics or biological effects is conducted in the Virgin Islands for lack of baseline standards for Virgin Islands conditions. According to the Virgin Islands multi-year monitoring strategy, DPNR will explore options for implementing a biological component of the Ambient Monitoring Program. This may include developing a partnership with NOAA or another agency with similar monitoring objectives.

 

5. Fish tissue, sediment, shellfish monitoring:

 

The Virgin Islands Water Pollution Control program does not include toxic chemicals or biological monitoring. The program also does not monitor fish tissue, sediment or shellfish for toxicity. A background analysis of ambient water quality has not yet been performed to support the adoption of criteria for toxic chemicals (1996 VI 305(b)).

 

6. Quality assurance/quality control program

 

The US Virgin Islands DPNR-DEP Quality Assurance (QA) Program is committed to assuring and improving the quality of all environmental measurements performed by and for the Department. The goal of the QA program is for the acquisition of reliable and defensible environmental data. It is the policy of DPNR that adequate QA activities are conducted within the agency to ensure that all environmental data generated and processed be scientifically valid, of known precision and accuracy, of acceptable completeness, representative, comparability and where appropriate, legally defensible.

During Fiscal Years 2008 and 2009 QA activities such as program technical audits, file audits, revision of the Quality Assurance Management Plan, Management System Reviews, review of program and contractual Quality Assurance Project Plans, review of all program Standard Operating Procedures, and Laboratory Certifications were performed. DPNR has a full-time QA/QC Officer who also acts the Laboratory Certification Officer for the Department.

 

7. Volunteer monitoring

 

DPNR had no monitoring volunteers during the reporting period. Volunteer monitoring, however, is being planned for implementation in future water quality monitoring program activities.

 

8. Program evaluation

 

• A background analysis of ambient water quality is needed to support the adoption of specific criteria for toxic pollutants (1998 305(b) Report). As part of the 2004 US Virgin Islands Water Quality Standards revision, the national recommended criteria were adopted;

 

• New equipment and staff training is needed to assess water quality for the development of toxic and biological criteria (1998 305(b) Report);

• Revisions of the existing Local Water Pollution Control Act and regulation are needed to enhance the program’s ability to enforce its laws and statutes;

 

2010 USVI Integrated Report

Page 79 of 165

 

• Revisions to the Water Quality Standards and criteria to include numeric values instead of narrative description of desired water quality;

 

• Stormwater regulations are being implemented within the TPDES permitting program.

 

B. Assessment Methodology

 

Purpose:

 

The Clean Water Act requires each state, territory and tribe to conduct water quality surveys to determine if its waters are healthy and have sufficient quality to meet their designated uses and attain water quality standards. A report on this water quality assessment is submitted every two years to US Environmental Protection Agency – Region 2. The report incorporates physical, chemical, and microbiological data from the StoRet database, habitat assessments, and beach monitoring data (fish kills/advisories, oil spills, beach closings, etc.). Use of data is subject to availability.

 

The U.S. Environmental Protection Agency encourages states, territories and tribes to adopt the Integrated Reporting format which blends elements of the 305(b) Water Quality Assessment Report and the 303(d) Impaired Waterbody List. The United States Virgin Islands uses this format to more accurately and completely assess our waterbodies.

 

Complete assessments include:

 

Identification of waterbody type.

 

All waters of the U.S. Virgin Islands shall meet generally accepted aesthetic qualifications and shall be capable of supporting diversified aquatic life.

 

“Waters” of the U.S. Virgin Islands shall be defined, as follows, as in by Title 12, Chapter 7, Section I82(f) of the Virgin Islands Code; all harbors, streams, lakes, ponds, impounding reservoirs, marshes, water-courses, water-ways, wells, springs,

irrigation systems, drainage systems and all other bodies or accumulations of water, surface and underground, natural or artificial, public or private, situated wholly or partly within or bordering upon the United States Virgin Islands, including the territorial seas, contiguous zones, and oceans.

 

These “waters” are included in the U.S. Virgin Islands 2010 Integrated Report. All available groundwater data will be reviewed for possible inclusion in the report and Division of Environmental Protection’s Groundwater Program will provide groundwater discussion in the 2010 Integrated Report. At the very least, the Integrated Report should include an overview of groundwater and wetlands resources.

 

Identification of waterbody classification and designated use.

 

According to the US Virgin Islands water quality standards, the waters of the Virgin Islands exist in one of three classes: A, B and C. The following describes the geographical extent of the three waterbody classes, the associated designated uses, and the applicable water quality standards.

 

2010 USVI Integrated Report

Page 80 of 165

 

Class “A” Waters

 

Best usage of waters: Preservation of natural phenomena requiring special conditions, such as the Natural Barrier Reef at Buck Island, St. Croix and the Under Water Trail at Trunk Bay, St. John. These are outstanding natural resource waters that cannot be altered except towards natural conditions. No new or increased dischargers shall be permitted.

 

Quality criteria: Existing natural conditions shall not be changed. The biological condition shall be similar or equivalent to reference condition for biological integrity. In no case shall Class B water quality standards be exceeded.

 

 

(1)  Within 0.5 miles of the boundaries of Buck Island’s Natural Barrier Reef, St. Croix.

(2)   Trunk Bay, St. John.

 

Class “B” Waters.

 

Best usage of waters: For maintenance and propagation of desirable species of aquatic life (including threatened, endangered species listed pursuant to section 4 of the federal

Endangered Species Act and threatened, endangered and indigenous species listed pursuant Title 12, Chapter 2 of the Virgin Islands Code) and for primary contact recreation (swimming, water skiing, etc.). This Class allows minimal changes in structure of the biotic community and minimal changes in ecosystem function. Virtually all native taxa are maintained with some changes in biomass and/or abundance; ecosystem functions are fully maintained within the range of natural variability.

 

(1)  All other waters not classified as Class “A” or Class “C”.

 

(A)  Those Class “B” waters not covered by color and turbidity criteria in section 186-3(b)(11) of this chapter include:

 

(i) St. Thomas waters-Mandahl Bay (Marina), Vessup Bay, Water Bay, Benner Bay,

and the Mangrove Lagoon.

 

2010 USVI Integrated Report

Page 82 of 165

 

(ii) St. Croix waters-Carlton Beach, Good Hope Beach, Salt River Lagoon (Marina),

Salt River Lagoon (Sugar Bay), Estate Anguilla Beach, Buccaneer Beach, Tamarind

Reef Lagoon, Green Cay Beach and Enfield Green Beach.

 

(iii) All non-marine waters defined as all Virgin Islands waters shoreward of the mean

high-tide line.

 

(B)  All other Class “B” waters are covered by the color and turbidity criteria in section 186-3(b)(11)(B) of this subchapter.

 

 

 

Class “C” Waters

 

Best usage of waters: For maintenance and propagation of desirable species of aquatic life (including threatened and endangered species listed pursuant to section 4 of the federal Endangered Species Act and threatened, endangered and indigenous species listed pursuant Title 12, Chapter 2 of the Virgin Islands Code) and for primary contact recreation (swimming, water skiing, etc.). This Class allows for evident changes in structure of the biotic community and minimal changes in ecosystem function. Evident changes in structure due to loss of some rare native taxa; shifts in relative abundance of taxa (community structure) are allowed but sensitive-ubiquitous taxa remain common and abundant; ecosystem functions are fully maintained through redundant attributes of the system.

 

(1)  St. Thomas:

 

(A)St. Thomas Harbor beginning at Rupert Rock and extending to Haulover Cut.

 

(B) Crown Bay enclosed by a line from Hassel Island at Haulover Cut to Regis Point

at West Gregerie Channel.

 

(C)Krum Bay.

 

(2)  St. Croix:

 

(A) Christiansted Harbor from Fort Louise Augusta to Golden Rock, along the

waterfront and seaward to include the navigational channels and mooring areas.

 

(B) Frederiksted Harbor from La Grange to Fisher Street and seaward to the end of the

Frederiksted Pier.

 

(C)Hess Oil Virgin Islands Harbor (alternatively named HOVENSA Harbor).

 

(D) Martin-Marietta Alumina Harbor (alternatively named Port Alucroix or St. Croix

Renaissance Group Harbor).

 

(3)  St. John:

 

(A)Enighed Pond Bay

 

 

Evaluation of Internal Data

 

Due to issues with internal data collection, which included malfunctioning equipment, USEPA evaluated DPNR Basic Water Quality Monitoring Program data for FY2008 and 2009. USEPA determined there could be no reliance on any DO, pH, turbidity and temperature data reported from the field.

 

Therefore, DPNR were required to use only the beach monitoring data, data received during the 2010 Integrated Report data solicitation process announced on October 16, 2009, and analytical data for bacteria, TSS, and turbidity to conduct assessments for the 2010 Integrated Report.

 

DPNR evaluates all internal monitoring data to determine if the Data Quality Objectives outlined in the USVI Ambient Water Quality Monitoring Program Quality Assurance Project Plan are met. Once the data is determined to meet the required objectives the data is used to conduct the assessments for the reporting cycle.

 

The following agencies were contacted to request data during the Data Solicitation Period. The agencies were asked to submit all relative monitoring data for the monitoring period with the associated Quality Assurance Project Plan:

 

Kofi Boateng Associate State Director UVI-CES

Jeffrey Potent – USEPA Region 2

Rafe Boulon – National Park Service

Barbara S.P. Moore Director NOAA/National Undersea Research Program

Eric Hawk Section 7 Coordinator National Marine Fisheries Service

Richard Nemeth, Ph.D. Director UVI-CMES

Pedro Diaz – USGS/GSA Center

Edwin Muniz Supervisor USFW/PR Field Office

 

Once received the QAPP and data would be evaluated to determine if DPNR’s Data Quality Objectives were met. If the data is determined to be acceptable then the data would be used in the reporting cycle’s assessments. A rationale for any decision to not use any existing and readily available data and information would also be included in the Integrated Report. DPNR, however, did not receive data from external sources during the data solicitation period for the FY2008 and 2009 reporting cycle. 

The EPA is, finally, taking Protection of Coral Seriously

This past week the EPA was here, on island, in-force to collect issues and concerns from residents/citizens on how bad the Coral is? and what, we thought, was causing it?

 

Oddly enough, most people who stood up and spoke thought the Coral was, primarily, being damaged by run-off from the land.  This just goes to show how effectively our Waste Management Authority has hidden the extent of their criminal dumping of many hundreds of millions or perhaps, billions of gallons of raw, untreated sewage into our coastal water over the past 40 years. The EPA has had VIWMA in Federal Court over continuing dumping of raw, untreated sewage into our Coastal Waters since 1984; that’s 29 years.  This dumping of raw sewage is a felony under the Clean Water Act.  Guess what?  No one in Waster Management has been cited for contempt; no one has gone to jail and no one has been fired.  The EPA has allowed Waste Management to pollute, and continue to pollute without consequences for nearly 30 years.  This is disgusting and must stop.

 

Raw Sewage is the primary cause of Coral disease; the Coral (and Turtle Grass) can’t move out of the way like fish and turtles.  This raw sewage is full of nitrates which are one of the most deadly chemicals in the marine eco-system.  According the EPA’s own website, Nitrates are being tested in St Croix, but not in St Thomas or St John.  Why not?  The sewage is also full of bacteria and more-and-more people are getting staph infections from going swimming; these include anti-biotic resistant strains called MRSA and Flesh-Eating Bacteria.

 

If you have, or have had, one of these infections, send us an email (dave@greenervi.org).  We will keep your name confidential, but want to report to the EPA on the scope of the problem in the US Virgin Islands.  This is important; tell your friends.

 

The EPA put recycling and composting on its agenda three years ago.  In that time, the EPA has had many successes in Puerto Rico, but none here in the Virgin Islands.  Why?  Incompetent leadership in VIWMA!  Ms. Cornwall had been the Director of Waste Management for 26 years; remember Waste Management has been continuously in-court for the past 29 years for dumping raw sewage.  Ms. Cornwall should be fired without pension and should be wearing an Orange Jumpsuit.  What’s it going to take? A medical emergency?

 

Speaking of a medical emergency?  Does Waste Management test the water quality before and after dumping raw sewage?  If not, why not?  Perhaps, its DPNR.  Where can we, the people, go to get the results of that water quality testing?  Why are the testing results not available on a website?  Can it be that DPNR and Waste Management and WAPA do not want us to know the water quality testing results?  EPA, what about you?  Do your job and get our coastal water quality and air tested, and, insist on transparently releasing the results where people can get to them.

 

Ok.  The EPA has, finally, seen the light and, now, wants to do everything possible to save the remaining coral that we have.  They have sent people down here to find out how really bad it is.  They are seeing, first-hand, how corrupt CZM, DPNR, VIWMA, and WAPA are.  They are also getting an idea how ineffectual their own EPA people are here in the Virgin Islands and Puerto Rico.  This also applies to the NOAA people as well.  These people have allowed the dumping of raw sewage to continue for three decades; what was the penalty?  Fines, just fines, but no change in behavior.  All the while, the EPA could have asked the Federal Judge to hold Waste Management in contempt or they could have put Waste Management Leaders in jail.  Why didn’t they do something after 5 years, or 10, or even 20?  What is wrong with our government? It is supposed to protect us, not make us sick.

 

This have gotten so bad that the EPA is going to lead a Federal Inter-Agency Task Force to clean-up our waters and address the many pollution issues we have.  This is wonderful news; the Federal Bureaucracy has noticed us and has decided we need a clean-up.  Fine.  I call for the Privatization of VIWMA and WAPA.  Both of these organizations refuse to tell us, the people, what their salaries are, their pensions and other benefits.  Both of them pollute our air, water and coral.  Both of them are unaccountable.  They must both be put into receivership or made private or both.  A Chief Financial Officer (CFO) needs to be appointed to review/cancel their contracts and other arrangements.

 

For those who are concerned about our Coral Reefs, the EPA is distributing a new document, published in April 2012, called, “Field Manual for Coral Reef Assessments”.   It is in PDF format and here is the link on our website.  Alternatively, here is a link to the EPA website.

 

Dave Maxwell, GreenerVI

The Significance of NOAA’s Recent Proposal to Protect 66 Coral Species

December 20, 2012

by Megan Herzog

 

NOAA Coral 1

credit: NOAA Photo Library

 

Citing threats associated with climate change, the National Oceanic and Atmospheric Administration (“NOAA”) proposed on December 7, 2012 to list 66 coral species under the Endangered Species Act (“ESA”), and to reclassify two already-listed Caribbean coral species from “threatened” to “endangered.”  According to NOAA Fisheries, this was “the most complex listing process NOAA has ever undertaken.”  NOAA’s coral listing proposal is monumental for several reasons, including the scope of the scientific review, the unprecedented application of the ESA to marine invertebrates, and the federal government’s continued recognition of the adverse impacts of climate change on marine species.  If finalized, the coral listings could provide significant tools for marine conservation and climate adaptation.

 

This post begins with quick facts about corals, followed by a review of the process that led to the proposed coral listings; a brief summary of the proposal; the reasons why these proposed listings are particularly monumental; and a discussion of what the listings might mean for corals, marine conservation, and climate change adaptation.

 

Quick Facts About Corals

 

 

The Long Path to the Proposed Coral Listings

 

 

NOAA’s proposed listing is the result of the efforts of the Center for Biological Diversity, a non-profit environmental organization particularly active in seeking ESA protections for climate-imperiled species [full disclosure: I worked at the Center as a law student several years ago].  The Center for Biological Diversity filed a petition with NOAA Fisheries over three years ago to list 83 coral species under the ESA.  Here’s an excerpt from the 2009 petition (p. 2):

“The world’s corals and coral reef ecosystems are in crisis. Nearly 20% of the world’s coral reefs have already been lost, and approximately one-third of all zooxanthellate reefbuilding coral species is at risk of extinction . . . .  According to coral scientists, “reefs are likely to be the first major planetary-scale ecosystem to collapse in the face of climate changes now in progress”. [Citations omitted.]“

Notably, all coral species named in the Center’s petition are already designated as threatened by the International Union for Conservation of Nature (“IUCN”) and protected under the Convention on International Trade in Endangered Species (“CITES”), a voluntary international agreement signed by almost all countries—including the United States—to prevent the cross-border trade of endangered and threatened species.

In February 2010, NOAA made a so-called “90-day finding,” agreeing to review the status of 82 of the 83 candidate coral species included in the Center for Biological Diversity’s petition.  NOAA established a Biological Review Team (i.e., a group of federal government scientists with expertise in corals) to compile the best available scientific and commercial data in order to evaluate the extinction risk each candidate species faces.  Progress stalled, however.  The Center for Biological Diversity filed three notices of intent to sue the agency.  Finally, in 2011, as part of a stipulated settlement agreement approved by the federal District Court for the Northern District of California, NOAA agreed to submit a proposal regarding the 82 coral species by the end of 2012.

In April 2012, the Biological Review Team finally released a Status Review Report, which concluded that most of the evaluated species were “more likely than not” to go extinct by 2100 as a result of climate change impacts, barring any dramatic shifts in policy or technology.  On November 30th, in compliance with the court-ordered deadline, and based on the Status Review Report, NOAA announced its proposed decision to list 66 coral species and to reclassify elkhorn and staghorn corals from “threatened” to “endangered.”  (NOAA found that listing was not warranted for the other 16 coral species.)  The full proposal was published on December 7th at 50 C.F.R. pts. 223 & 224.

 

The Listing Proposal

 

Of the 66 coral species proposed for ESA protections, 59 are located in the Pacific Ocean (off the coasts of Hawaii, Guam, the Northern Mariana Islands, American Samoa, and U.S. Pacific Island Remote Area) and 7 are located in the Atlantic/Caribbean Ocean (off the coasts of Florida, Puerto Rico, Navassa, and the U.S. Virgin Islands).  The species can also be found in 83 other countries.  Twelve species would be listed as endangered, and 54 would be listed as threatened.  The full list of corals proposed for ESA listing can be found on the NOAA Fisheries website.  In its proposal, NOAA identified 19 threats to corals, including ocean acidification and coral bleaching.

NOAA Coral 2

Example of coral bleaching (Credit: NOAA Photo Library)

 

Ocean acidification is a phenomenon resulting from the ocean’s absorption of atmospheric carbon dioxide (CO2).  Each year, the ocean absorbs an estimated one-quarter of the CO2 we emit into the atmosphere from activities like driving a car.  This absorption leads to shifts in the ocean’s chemical balance that cause the ocean to grow less alkaline (from pH 8.2 to 8.1).  Yes, this can also be phrased as “more acidic” but it will be a long time before seawater can be classified as an acid with a pH below 7.  Strikingly, the acidity of the ocean has increased by approximately 30 percent since the Industrial Revolution, and the ocean is predicted to be 150 percent more acidic by 2100.  A more acidic ocean, with a higher concentration of free hydrogen ions (H+), means a shift from solid calcium carbonate (CaCO3) in favor of dissolved bicarbonate (HCO3).  Calcium carbonate is an essential building block for the skeletons and shells of many marine organisms at the base of the food chain (e.g., oysters, clams, corals, and some plankton).  The decreased carbonate (CO32-) availability stresses calcifying organisms, making them more vulnerable to other stressors and endangering the entire marine food web.

 

Coral bleaching increases the frequency and severity of coral disease outbreaks.  As the temperature of the ocean rises, corals become stressed and expel the symbiotic algae living in their tissues.  The algae expulsion causes the coral to turn white and appear “bleached.”  Bleached corals are not dead, but they are severely weakened and more susceptible to death.  You may recall the major coral bleaching event that occurred in 2005, when the United States lost half of its Caribbean coral reef population.  On a large scale, bleaching can result in fishery and ecosystem collapses.

 

Three Reasons Why NOAA’s Recent Coral Listing Proposal is Monumental

 

1) Invertebrate species like corals historically have received little attention under the ESA.  Prior to the Center for Biological Diversity’s petition, the possibility of listing numerous corals under the ESA was barely on NOAA’s radar.  Of the 82 candidate coral species, only one species (Montipora dilatata) was even previously identified by NOAA Fisheries as a Species of Concern (“Species of Concern” is an ESA designation given to species about which federal agencies have some concerns, but more data is needed about the species’ status and threats to support a listing).

Invertebrates generally, and marine invertebrates in particular, receive comparatively little conservation attention.  Indeed, out of the more than 1.2 million invertebrate species that exist on the planet (insects, spiders, shellfish, crabs, octopus, snails, etc.), only 226 species are listed as threatened or endangered under the ESA (or <0.02 percent).  In comparison, 393 of the 50,000 or so known vertebrate species are listed (about 2 percent).  Put another way, vertebrates receive more than one hundred times the protection invertebrates receive.  Although vertebrates comprise only about 3 percent of the earth’s species, they represent a whopping 64 percent of ESA listings.

It is not terribly surprising that vertebrates are listed in disproportionately larger numbers than invertebrates like corals.   Furry, big-eyed, “megafauna” (think Pandas) tend to capture the public’s imagination more than gooey, prickly, spineless things (do you even know what an arthropod is?  Hint: they make up three-quarters of all animals on the planet.).  Although the ESA “Definitions” section explicitly states that the Act applies to any “mollusk, crustacean, arthropod or other invertebrate,” it is clear from the structure of the Act that the Act is an easier fit for terrestrial vertebrates like bald eagles and grizzly bears than corals.

The proposed coral listings represent a dramatic and unprecedented increase in attention to invertebrate conservation.  In fact, if NOAA ultimately decides to list all 66 coral species, the total number of ESA-listed invertebrates will increase by a third.  And because only 4 marine invertebrate species are currently protected under the ESA (elkhorn and staghorn corals plus 2 abalone species), the total number of ESA-listed marine invertebrates will increase almost 2000 percent.  In other words, NOAA’s proposal is big news for marine invertebrate conservation.

 

2) The corals are the latest example in a growing trend of climate-imperiled species listings.  NOAA’s proposal is also big news for climate-imperiled species conservation.  Few species currently are protected under the ESA because of climate change impacts.  Two of those species are elkhorn and staghorn corals—further noteworthy because they are the only two coral species currently listed under the ESA.  Elkhorn and staghorn corals were the first species to gain ESA protections based on global warming impacts.  Another climate-imperiled listed species is the polar bear, which was listed as threatened in 2008 due to its shrinking sea-ice habitat.  Notably, the polar bear, elkhorn, and staghorn listings are also examples of successful Center for Biological Diversity petitions (see here, here and here) and ensuing legal battles.  In the cases of several other listed species, such as some Florida butterfly species, the atlantic sturgeon, and the loggerhead sea turtle, federal agencies named climate change and/or sea-level rise as a factor contributing to the listing.  There are likely additional examples.  Overall the number of species listed explicitly because of climate change is still a small, but growing.

The listing trend suggests that greater numbers of climate-imperiled species may become candidates for ESA protections in the coming years.  Providing species with domestic legal protections based on the global problem of climate change is a significant policy trend for the United States, especially when contrasted with the federal government’s failure to enact greenhouse gas emission mitigation laws in response to the same global challenges.  It should be further noted that, to date, comparatively few terrestrial climate-imperiled species have yet received ESA attention (polar bears are classified as marine mammals); but this may change as terrestrial climate change impacts grow more dramatic and are increasingly documented.

 

3) The scope and complexity of the scientific review was exceptional.  NOAA’s status review of 82 coral species is by far the largest, most complex review NOAA has ever undertaken.  The second largest species review took place in the 1990s, when NOAA’s Biological Review Teams reviewed the status of all West Coast anadromous salmon species—representing 30 total species.  The salmon review resulted in NOAA listing 24 additional salmon and steelhead trout populations under the ESA, but even that massive effort pales in comparison to NOAA’s current proposal to list almost three times as many coral species.

NOAA’s coral species review is unprecedented not only because of its scope but also because of the distinct challenges involved in assessing the abundance of a species (i.e., the total number of species in a given area) when the species is both clonal and colonial.   Coral are clonal, meaning they can reproduce asexually by splitting into fragments, each of which develops into a clone of the original coral.  Coral are also colonial, meaning they build colonies through reproduction.  A coral colony can survive even if a portion of the colony dies.  Deciding how to measure coral abundance thus presented the Review Team with some challenging questions.  For the purposes of determining abundance, are genetically identical corals “distinct” individuals?  Or is an entire coral colony better understood as an individual? Identification was complicated by the fact that, even if a coral species can be identified on the ground, it is often difficult to distinguish between separate coral colonies.

Partially as a result of these complications, and further compounded by the fact that corals have complex life-cycles that are difficult to monitor in marine environments, abundance baseline and trend data essentially was non-existent for most of the corals NOAA examined (see Status Review Report at p. xxxiii).  As NOAA noted in its proposed rule (pp. 17-18), abundance estimates only existed for a few of the 82 candidate coral species, and much of the abundance data NOAA could obtain evaluated coral cover only at the genus (versus species) level.  NOAA therefore had to evaluate corals’ extinction risk against a backdrop of high scientific uncertainty. (For an account of how NOAA managed to calculate coral abundance given various scientific and practical limitations, see Status Review Report at chs. 2.1, 6-7).

The resulting proposal is thus a significant example of agency decision-making against the backdrop of a high level of scientific uncertainty.  Notably, this is exactly the type of decision-making that will be increasingly required in a climate-impacted world.   Given that climate change impacts are only predicted to increase, combined with the fact that climate change impacts are sweeping and broadly impact all species and ecosystems, it is likely that federal agencies will continue to face similar review challenges.  NOAA’s coral review likely is only the first of many large-scale ESA reviews that federal agencies will be required to undertake in a climate-impacted world.  Like the coral review, future climate-impacted species reviews may also concern species for which we have little baseline abundance data, which have received comparatively little scientific attention in the past, and which may not be easy fits for ESA procedures as currently applied and interpreted.

 

What ESA Protections for Coral Could Mean

 

NOAA Coral 3

Credit: NOAA Photo Library

 

Before discussing the proposal’s broader potential impacts, it is helpful to review the next steps in the listing process.  Before making a final listing determination, NOAA will seek comments on its proposal from the public (e.g., scientists, industry, and any other concerned parties) and other government agencies.  (You can submit written comments online via www.regulations.gov, entering the code: NOAA-NMFS-2010-0036).  NOAA plans to finalize the listings by December 2013.   Once a species is listed, the ESA allows NOAA to designate certain geographical areas that are essential to the species’ conservation as critical habitat, and identify regulations necessary for the species’ conservation.

NOAA also may develop a recovery plan to put the listed species on the path to recovery.  NOAA additionally is required to consult with other agencies whose actions may jeopardize the species’ existence; before another federal agency can take any action that may adversely affect a listed species, such as issuing a permit or authorizing funding, ESA § 7 requires the agency to obtain a biological opinion that such action is “not likely to jeopardize the continued existence of any threatened or endangered species or result in the destruction or adverse modification of designated critical habitat.”  Additionally, NOAA may issue permits for activities that might incidentally cause a take of an endangered species (under the ESA § 9, taking means “”to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”)  Commercial activity involving an endangered species is forbidden, and NOAA may extend these protections to threatened species, as well.

 

If the 66 coral species are listed, what could we expect?

 

1) Critical habitat designations for the corals could be very large.   If the critical habitat designated for the other three climate-imperiled marine species already listed under the ESA is any indication, critical habitat designations for 66 coral species could amount to thousands or even tens of thousands of square miles of ocean.  The polar bear listing coincided with the largest critical habitat designation in history: 187,000 square miles of Alaska are protected.  Elkhorn and staghorn corals benefit from a smaller, but still significant critical habitat designation of 3000 square miles of marine habitat.

NOAA has been swift to offer assurances that listing coral species under the ESA likely will not prohibit fishing, diving, or other marine activities.  NOAA also reminded the public in a recent press release that any critical habitat designations would take into account potential impacts on the fishing and shipping industries, in keeping with President Obama’s directive against burdensome regulations:

“Earlier this year, the President directed that any potential future designations of critical habitat carefully consider all public comments on relevant science and economic impact, including those that suggest methods for minimizing regulatory burdens. Therefore, any potential future critical habitat designation in connection with today’s proposed listing will include a full analysis of economic impact, including impact on jobs, and to the extent permitted by law, adopt the least burdensome means . . . . NOAA will work with stakeholders to minimize any potential impacts of possible future action on the economy and jobs and, in particular, on construction, fishing, farming, shipping, and other important sectors [emphasis added].”

Still, in combination with the ESA’s section 7 “jeopardy” clause, any coral critical habitat designations could be quite powerful. Which brings us to the next point….

 

2) The ESA’s “jeopardy” clause could have broad implications for water pollution, coastal construction, and more. As discussed above, ESA § 4 critical habitat designations represent one of the meatier ESA protections when combined with the section 7 “jeopardy” provision.  Under ESA § 7, federal agencies must consult with NOAA Fisheries prior to taking any action that may “result in the destruction or adverse modification of” critical habitat, and NOAA Fisheries may suggest reasonable alternatives to mitigate the action’s impacts.  As Ryan Kelly of the Center for Ocean Solutions argued in his paper Spineless Wonders (19 Penn State Envtl. L.R. 1 (2011)):

“[I]f marine species’ critical habitat includes the water itself, as it logically must, section 7 consultation promises both to become more analytically complex (given the upstream-downstream dynamic) and further reaching, impacting a larger number of federal actions along the coast. Some of the many routine federal agency actions could constitute an adverse modification include approving and issuing water quality standards under the [Clean Water Act (CWA)] (and perhaps NPDES permits), drilling/ mineral extraction, dredging/filling under section 404 of the CWA, and the management of commercial fishing under the Magnusson-Stevens Act [citations omitted].”

In a recent press statement, Miyoko Sakashita of the Center for Biological Diversity noted that the federal government ultimately could use the corals listings to protect corals from overfishing.  According to Sakashita, “Other local threats that need attention include water pollution, dredging, or coastal construction that impacts coral habitat.”

So far, elkhorn and staghorn corals’ critical habitat has not presented notable controversies; but, as Kelly suggests, this is most likely because federal agencies “have not yet appreciated that they are subject to the requirement.”  In the future, marine conservation advocates could harness critical coral habitat as a tool to obtain additional protections for marine and coastal environments.

 

3) NOAA’s traditional interpretation of “take” may be challengedKelly notes that the larvae of marine invertebrates present some interesting questions in the context of ESA “take” provisions: “[B]ecause each adult animal may produce billions of nearly microscopic, translucent larvae that float for hundreds or thousands of kilometers . . . . could a person be subject to civil and criminal penalties for unwittingly killing a handful of nearly invisible larvae during a day at the beach?”  Kelly recognizes this as an extreme hypothetical; but the underlying tension remains: ESA “take” prohibitions are an uneasy fit for corals.  If the 66 coral species are listed, NOAA ultimately may enact regulations specific to their protection.

As NOAA continues to list greater numbers of climate-imperiled marine animals under the ESA, it will be interesting to see how all of these challenges play out.  In the meantime, National Geographic has posted beautiful photos of some of the candidate corals.  We can be grateful that the devastating effects of ocean acidification and coral bleaching are receiving increased regulatory attention.

 

[Post updated on: December 21, 2012; thank you to University of Maine School of Law Professor Dave Owen for providing valuable contributions regarding the status of climate-imperiled species listings.]

 

Privatization of VIWMA and WAPA

From: Susan Wolterbeek [mailto:susanremy@vipowernet.net]
Sent: Friday, February 22, 2013 4:38 PM
To: ‘Enck, Judith’
Cc: ‘Mark Lichtenstein’; ‘Pabst, Douglas’
Subject: An interim solution
Importance: High

 

Dear Judith:

 

Thank you for our lengthy conversation Tuesday. Since the EPA does not want to get involved in Receivership, I have two concepts which will achieve our immediate goals of learning the true conditions of our air, land and coastal waters, and then formulating a plan to protect people and coral.

 

Until now, despite court orders and requests by the EPA, VIWMA and DPNR are still not telling citizens the truth about the dumping of raw sewage and turning over water test data, etc., as well as air quality data.  DPNR often will not post sewage warnings on impaired beaches, because, according to Jamal Nielson of DPNR, “the hotels don’t like them to post about sewage”.  The non-compliance reports filed are never complete, and sometimes are missing altogether. We only know this when the illegal dumping is caught and reported by our newspapers, and there are no non-compliance reports for those dates. We who live here do not know where it is safe to swim, fish, snorkel. We do not know what to say to our islands’ visitors.

 

EPA FUNDED DATA GATHERER/WATCH DOG/LIASION

 

        As you know, we at GreenerVI.org have been working for the past 3 years to stop our local utilities from polluting VI coastal waters. Here is the plan: The EPA funds a project, starting immediately, for GreenerVI.org to gather and publish relevant data from DPNR, VIWMA, WAPA, EPA, NOAA etc. in regard to the environment. In a letter to our Governor and the Senate, the EPA asks the local agencies to comply with GreenerVI requests for information. In this way, we can review prior Court Orders and verify that VIWMA and WAPA are in compliance, according to their own documents. We can see what is being measured in water tests, and what is not.

 

According to the EPA, http://water.epa.gov/lawsregs/guidance/cwa/305b/upload/1998_05_07_305b_96report_vi.pdf,  for example, DPNR does not test for “phosphorus, nitrogen, and suspended solids” in St. Thomas or St. John, yet those tests are critical to coral, as well as people. GreenerVI.org will publish air and water quality results, and have a comprehensive, interactive website, so that members of the public, as well as agencies, will all have a voice, and get answers for once!  In this way we can be a liaison to the people, sharing information. I know that thousands of us will volunteer our time, energy, tools and money to help clean up our islands, if given the chance. Dave Maxwell had the top level clearance in Intelligence at the Pentagon before he retired. He will manage the information and the website. I am a former NYC prosecutor and attorney for the State of NH, and will review and report on all legal issues and prepare documents and reports.

 

This EPA funded project will enable the people of the VI to finally be given the information they are legally entitled to know, and this will help us all to unite in our quest to help preserve our natural resources.

 

 

  1. We need to know where it is not safe for people to go in the water, particularly for babies, the elderly and those of compromised health.
  2. We need to learn the present condition of the remaining coral and turtle grass.
  3.  We need the polluting to be stopped by VIWMA and WAPA, and by the cruise ships blowing their stacks-especially Oasis of the Seas.
  4. We need to start a plan for the mountain of Red Mud in St. Croix-there is a company which can recycle the commercial arsenic, etc., and all the other poisons, with a by- product of water resistant/waterproof bricks to be used for building materials.

 

 

Judith, if you would also ask the CDC to inquire as to water- born infections treated in the USVI for the past 3 years, then we will have a much better idea of what is going on in our territorial waters. A friend of mine was being treated for a staph infection in the ER-along with 6 others at the same time. There are many people who have been in danger of losing their limbs due to staph infections, especially MRSA and flesh eating bacteria. We need to know the truth, and the CDC will respond to the EPA, but not to us.

 

The other idea worth exploring, particularly if you are meeting with the Governor, is to see if he will CONSENT TO PRIVATIZATION OF WAPA AND VIWMA- This would enable Mark Lichtenstein and Sue Parten to go full steam ahead with all of their plans, and allow NREL and DOI to develop the best solution for our energy needs, as quickly and efficiently as possible. The key is that the selection of the contractors, engineers, etc., is not in the hands of the local government.  I earnestly believe that if the EPA makes clear to the Governor that this will enable the VI to get our utilities to stop polluting and crippling us with costs, that he will agree. With such a Consent Agreement, we can save our coral, as well as our health and economy.

 

I look forward to seeing you on Monday, Judith, and meeting with Doug on Wednesday. Cheers, Susan

WAPA Spewing Sticky Soot; Polluting our Air, Water and Corals

12-5-10 WAPA spewing sticky soot

Stench of Government Indifference – DailyNews September 2012

11-7-12 GreenerVI.org v. WAPA and VIWMA 001

Vast number of board vacancies raises concern

By ALDETH LEWIN (Daily News Staff)
Published: February 16, 2011

ST. THOMAS – Sen. Usie Richards sent a letter to Gov. John deJongh Jr. this week outlining the excessive amount of vacancies and expired terms on the government’s various boards and commissions.

Richards is chairman of the V.I. Senate’s Rules and Judiciary Committee, which conducts confirmation hearings for the governor’s nominees to governmental boards. If the committee votes favorably on a nomination, it is forwarded to the full Senate for confirmation.

In his letter to the governor, Richards said that because the V.I. government does not have county commissioners, city councils or mayors, it is crucial that the boards and commissions provide representative government.

“It is truly troubling that we have not seen a thorough commitment to ensuring that all Boards and Commissions, vested with statutory authority and responsibility, are properly functioning and filled with the appropriate number of individuals whose terms have not expired,” Richards wrote.

Richards’ first purpose is to take an inventory of the government’s boards, he told The Daily News on Tuesday.

“The second purpose of us taking on this task is to make determination of whether a board or commission needs to be in existence, whether some of these boards could be consolidated,” he said.

Richards said taking the inventory is the first step and that the Legislature could decide to strengthen the law and force the governor’s hand to make nominations immediately after terms expire.

Richards and deJongh were scheduled to meet on the issue Friday, but the meeting was cancelled at the last minute.

Government House spokesman Jean Greaux Jr. said the governor intends to discuss the vacancies on the various boards and commissions with Richards soon. The date for that meeting has not yet been set.

“We are in receipt of and reviewing Senator Richards’ letter. The governor continues to move forward with the filling of vacancies and positions of the many boards and commissions within the territory. We have been, and will continue to identifying individuals, review their resumes, and look to nominate and in some cases re-nominate those most qualified and willing to serve,” Greaux said in a written statement.

According to V.I. Code, if a vacancy occurs on a governmental board when a member’s term expires, the vacancy must be filled within 60 days. If the position is not filled within 60 days, and the vacancy causes the board to lose a quorum, all actions taken by the board are null and void.

Additionally, the law mandates that board vacancies be advertised publicly, allowing residents to submit nominations and recommendations to the governor.

It has been common practice for decades, and is allowed under the law, for board members with expired terms to continue to serve until they are replaced. Doing so allows the board to keep its quorum and continue to function.

“It’s my position that that has been abused,” Richards said.

In his research, Richards found that some board members still were serving after their terms expired more than 10 years ago.

He also found several boards missing representation from one district or the other.

For example, the V.I. Public Finance Authority board should have two members from each district from the private sector. Only St. Croix currently is represented on the board with two private sector members. The two vacancies for the St. Thomas-St. John District mean that the government’s representatives – the governor, the Finance commissioner and the director of the V.I. Office of Management and Budget – have the majority vote on the board.

“The point is that some action needs to be taken,” Richards said.

Some nominations sent to the Senate by deJongh during the last Legislative term never were acted on and will need to be resubmitted for the 29th Legislature to consider them, Richards said.

In his letter to the governor, Richards also reminded deJongh about a new law, enacted in August, that mandates that all members of the Board of Medical Examiners be nominated to the Legislature. The new law also mandates that three citizen members be nominated, “to the Legislature within 60 days after the effective date of this Act.”

The only nominations submitted this term have been Alicia Barnes for Department of Planning and Natural Resources commissioner and Elton Lewis for V.I. Territorial Emergency Management Agency director, Richards said. The confirmation hearing for both nominees is scheduled for Feb. 24.

– Contact reporter Aldeth Lewin at 774-7882 ext. 311 or e-mail alewin@dailynews.vi.The staff of Sen. Usie Richards complied a list of boards and commissions with vacancies and expired terms. The list includes:

– University of the Virgin Islands Board – All terms are current with no vacancies.

– V.I. Government Hospital & Health Facilities Corporation, St. Croix District Board – Wallace Phaire Sr.’s term expired in 2009.

– V.I. Government Hospital & Health Facilities Corporation, Schneider Regional Medical Center Board – Mulo Alwani’s term expired May 28.

– Government Employees Service Commission Health Insurance Board of Trustees – Yolanda Samuel Deterville’s term expired April 20. Clemmie Moses’ term expired in 2002.

– V.I. Port Authority Board – One vacancy.

– V.I. Civil Rights Commission – Three vacancies.

– V.I. Lottery Commission – Three vacancies.

– V.I. Historic Preservation Commission – Five vacancies.

– Government Employees Retirement System Board – Five members’ terms have expired: Vincent Liger, 2004; Leona Smith, 2004; Carver Farrow, 2006; Yvonne Bowsky, 2010; Marvin Pickering, 2010.

– Public Employees Relations Board – One vacancy. All members’ terms have expired: Aubry Lee, 2004; Hugo Dennis Jr., 2005; Omar Henry, 2005; Rodney Moorhead, 2008.

– V.I. Waste Management Authority – One vacancy. Three members’ terms have expired: Llewellyn Reed II, 2006; Winston Adams, 2007; Brion Morrisette, 2007.

– V.I. Public Services Commission – Two vacancies. Four members’ terms have expired: Donald Cole, 2009; Verne David, 2004; Sirri Hamad, 2009; M. Thomas Jackson, 2009.

– V.I. Water and Power Authority – Five members’ terms have expired: Juanita Young, 2010; Noel Loftus, 2010; Donald Francois, 2010; Brenda Benjamin, 2010; Cheryl Boynes Jackson, 2007.

– The West Indian Company Limited – Four members’ terms expire this month.

– V.I. Public Television System – Three members’ terms have expired: Raul Carrillo, 2010; Eugene Petersen, 2010; Caroline Polydore-Simon, 2009.

– V.I. Housing Finance Authority – One vacancy. Two members’ terms expired in 2006: Earl De Windt and Carmen Wesselhoft.

– V.I. Public Finance Authority – Two vacancies.

– V.I. Economic Development Authority – Jose Penn’s term expired in 2007.

– V.I. Banking Board – Four members’ terms have expired: Pablo O’Neal, 1996; Winston Bennett, 1997; Ernesto Gutierrez, 1997; Desmond Maynard, 1997.

– V.I. Parole Board – Four vacancies. Three members’ terms have expired: Chesley Roebuck, Samuel Garnett, and Dennis Howell.

– V.I. Board of Land Use Appeals – Two vacancies. Four members’ terms have expired: James Hindels, Fred Vialet, Jose Penn and Aloy Nielsen.

– V.I. Board of Tax Review – Two vacancies. Four members’ terms have expired: Ester Smith,
Read more: http://virginislandsdailynews.com/news/vast-number-of-board-vacancies-raises-concern-1.1105709#ixzz1FN3HVriG

Governor ignores the law on filling board vacancies

By Susan K. Wolterbeek
Published: July 13, 2010

This is an open letter to V.I. Attorney General Vincent Frazer with a copy to Solicitor General Elliot M. Davis:

The Governor keeps blatantly breaking the law: According to the V.I. Code, the Governor must advertise for boards and commissions, and accept nominations from the public and organized groups. He refuses.

U.S. Air Force Maj. David L. Maxwell (Ret.) wrote Gov. John deJongh Jr. a letter discussing these laws, which was published in The Daily News on Oct. 15, 2009, and attached hereto. Maj. Maxwell never received a reply from the governor.

Instead, Gov. deJongh continued with his practice of shutting out all the rest of us who live in the US Virgin Islands. We have a right to nominate good people for the boards and commissions, and our rights are continually being violated by our governor who just appoints whomever he wants.

The statutes are clear and unequivocal, as I pointed them out to Sen. Michael Thurland, chairman of the Rules and Judiciary Committee in my letter dated May 12, 2010, and published the next day in The Daily News. I never received a reply to my letter either.

Would you please enforce these laws? All illegal appointments to boards and commissions should be void, and those positions advertised, following the V.I. Code. The language in these statutes is mandatory, and specific, as to the procedure for filling vacancies.

It is the governor’s duty and obligation under V.I. Code, Title 3, Chapter 5, Subchapter 1, Section  § 65a. to fill the vacancies on boards within 60 days of the date the vacancy occurred.

The Board of Land Use Appeals had not had a quorum since 2007. Last year two groups filed appeals to that Board against the planned illegal dumping in Lindbergh Bay. Their appeals were never heard, a clear violation of due process.

It took considerable environmental advocacy with federal agencies and publishing documented violations of federal criminal laws to finally get the permit application withdrawn. All of that effort would have been avoided had the Governor complied with the law.

Despite Major Maxwell’s letter and mine, the governor again refused to advertise, and he nominated only his choices to the Land Use Appeals Board this spring.

We Virgin Islanders have Constitutional Rights, which include being fairly and justly governed according to our laws.

Pursuant to V.I. Code, Title 3, Chapter 5, Subchapter 1, Section  § 65b:

“Prior to the submission of a nomination to the Legislature to fill a vacancy on a board or commission, which nomination requires the advice and consent of the Legislature; the Governor shall cause to be printed in a newspaper of general circulation in each island district, a public notice that a vacancy exists. Such notice shall state the name of the board or agency on which the vacancy occurs, the fact that the Governor will be submitting a nomination to the Legislature, any qualifications required by law of prospective nominees, and an invitation to the public and organized groups to recommend persons to the Governor for nomination to fill the vacancy. The public notice shall be published not less than twice a week for two consecutive weeks.”

The Daily News confirms these public notices have never been issued for seats on boards and commissions.

Would you please compel the governor to follow these laws now and advertise for all board and commission seats that were filled illegally?

It is no wonder that many people feel they are powerless, when even our own governor refuses to obey the law and honor our rights.

Please show us that you care about enforcing the rights of the people. Thank you.

— Susan K. Wolterbeek is an attorney who lives on St. Thomas.

Nominations for the Board of Land Use Appeals

Committee on Rules and Judiciary                                                                                May 13, 2010

Senator Michael Thurland, Chairman

Legislature of the Virgin Islands

#1 Lagoon Street Complex

Frederiksted, St. Croix, VI  00840

Re: Nominations for the Board of Land Use Appeals

Dear Senator Thurland:

The Virgin Islands Code is very specific in regard to filling seats on Boards and Commissions. These laws are not being observed.  As Retired Major David Maxwell wrote to Governor deJongh in a Letter to the Editor published in the VI Daily News on October 15, 2009, it is the governor’s duty and obligation under V.I. Code, Title 3, Chapter 5, Subchapter 1, Section § 65a. to fill the vacancies on this Board within 60 days of the date the vacancy occurred.

 

The last time there was a quorum was in 2007. When the CZM Board made an illegal decision in regard to Lindbergh Bay in 2009, local attorneys filed appeals to the Land Use Appeals Board, which did not have enough members to hear the case, because the Governor and your committee did not follow the VI Code. Thus, their appeal was never heard, and due process rights were flagrantly violated.

“A public hearing on an appeal shall be held by the board within 60 days after the appeal is filed with the board, and a decision shall be rendered by the board within 30 days after the conclusion of such public hearing.” (V.I. Code, Title 12, Chapter 21, § 914(c)).

Now, 3 years after he was required by law to do so, the Governor has selected contacts and cronies to fill these important seats, rather than following VI Code to look for the people best qualified for these  positions. Pursuant to V.I. Code, Title 3, Chapter 5, Subchapter 1, Section  § 65b:

“Prior to the submission of a nomination to the Legislature to fill a vacancy on a board or commission, which nomination requires the advice and consent of the Legislature; the Governor shall cause to be printed in a newspaper of general circulation in each island district, a public notice that a vacancy exists. Such notice shall state the name of the board or agency on which the  vacancy occurs, the fact that the Governor will be submitting a nomination to the Legislature, any qualifications required by law of prospective nominees,  and an invitation to the public and organized groups to recommend persons to the Governor for nomination to fill the vacancy. The public notice shall be published not less than twice a week for two consecutive weeks.”

According to the VI Daily News last fall, these public notices have never been issued for boards and commissions. In regard to this specific board, there was no invitation to the public and organized groups to recommend persons for nomination. Instead, the Governor has selected Members for the Board of Land Use Appeals just as he has for other Boards and Commissions, and these nominees all have blatant conflicts of interest.

John Woods, Jr. is related to the Governor. Further, Mr. Woods is the principal of Jeredian Design Group.  In addition to private development projects (including CZM), he has been involved in many government projects, for example, the Christiansted Boardwalk, the design of the St. Croix offices of the Government Employee Retirement System, and several Department of Public Works (DPW) highway projects.

James Benton is the founder of J. Benton Construction which has managed many private and government construction projects.  Recently he was contracted to complete the St. Croix GERS office building.

Roberto Cintron is a civil engineer who has been Assistant Commissioner of DPW since April 2007.  Prior to that, he was St. Croix District Engineer for Public Works.

When there is a conflict of interest, board and commission members must announce the conflict, then recuse themselves from participating. If several board members recuse themselves, they may not have a quorum to vote on an issue. In the past, many board members and commission members have not recused themselves, despite blatant conflicts. This also is against the law, and only opens the government to further lawsuits.

 

We are asking your commission to deny this slate of candidates, and instead demand that Governor deJongh follow the above laws, advertise positions, review resumes, select the best candidates, who will not be conflicted out by their special interests, and who can then make sound, legal decisions.  Thank you.

Sincerely yours,

Susan K. Wolterbeek

Major David Maxwell, Major, USAF (Ret.)

cc: Members of the Committee on Rules and Judiciary

Citizens, Environmentalists and the VI Daily News

Governor Ignores Law – Fails to Fill Essential Vacancies

VI Daily News Guest editorial

Governor ignores V.I. law by failing to fill vacancies on Board of Land Use Appeals with cases pending

David L. Maxwell

Thursday, October 15th 2009

I devoted over 20 years of my life serving in our nation in the U.S. Navy and the U.S. Air Force, upholding the very values and rights of U.S. citizens our forefathers fought to create for us.

As citizens of the United States of America, we have unalienable rights, guaranteed to us by the 14th Amendment to the U.S. Constitution, which include the Right to Procedural Due Process.

At present, Virgin Islanders are being denied the right to procedural due process by our own governor, who is choosing not to fulfill his legal duty to appoint members to the Board of Land Use Appeals.

In regard to the West Indian Co.’s proposed dumping in Lindbergh Bay, hoteliers, citizens and environmental groups have appealed the CZM decision. Now the case is before the Board of Land Use Appeals.

“A public hearing on an appeal shall be held by the board within 60 days after the appeal is filed with the board, and a decision shall be rendered by the board within 30 days after the conclusion of such public hearing.” (V.I. Code, Title 12, Chapter 21, § 914(c)).

The appeal of the CZM decision in favor of WICO’s dumping in Lindbergh Bay was filed on Aug. 3, 2009, over 60 days ago, and thus the public hearing required by the law should have taken place already. However, the Board of Land Use Appeals lacks enough members to even have a quorum, so at present it cannot function as a board.

It is the governor’s duty and obligation under V.I. Code, Title 3, Chapter 5, Subchapter 1, Section § 65a. to fill the vacancies on this Board within 60 days of the date the vacancy occurred.

The language in these statutes is mandatory, and specific, as to the procedure for filling vacancies.

Pursuant to section 65b, “Prior to the submission of a nomination to the Legislature to fill a vacancy on a board or commission, which nomination requires the advice and consent of the Legislature; the Governor shall cause to be printed in a newspaper of general circulation in each island district, a public notice that a vacancy exists. Such notice shall state the name of the board or agency on which the vacancy occurs, the fact that the Governor will be submitting a nomination to the Legislature, any qualifications required by law of prospective nominees, and an invitation to the public and organized groups to recommend persons to the Governor for nomination to fill the vacancy. The public notice shall be published not less than twice a week for two consecutive weeks.”

After Gov. John deJongh Jr. nominates a member to the Board of Land Use Appeals, the appointment will be effective upon an affirmative vote by a majority of the entire V.I. Legislature. (§ 65c).

Despite the fact that the appeal of the CZM’s decision to the Board of Land Use Appeals was months ago, Gov. deJongh has chosen to not even begin the process of looking for appropriate board members yet, which begins with simply placing an advertisement of the available positions in the local Virgin Island newspapers.

It is Gov. deJongh’s specific legal duty to fill these positions, now, to allow the Board of Land Use Appeals to continue with the mandated appeals process of scheduling a Public Hearing in this matter. Pursuant to the Revised Organic Act of 1954, Section 11, this discusses the duties and obligations of the Governor of the United States Virgin Islands:

“The Governor shall have general supervision and control of all the departments, bureaus, agencies, and other instrumentalities of the executive branch of the government of the Virgin Islands. … He shall appoint, and may remove, all officers and employees of the executive branch of the government of the Virgin Islands, except as otherwise provided in this or any other Act of Congress, or under the laws of the Virgin Islands, and shall commission all officers that he may be authorized to appoint. He shall be responsible for the faithful execution of the laws of the Virgin Islands and the laws of the United States applicable in the Virgin Islands.”

It is now time for Gov. deJongh to begin to faithfully execute these laws, to fill the membership of the Board of Land Use Appeals, and to no longer block V.I. citizens’ right to due process.

Perhaps the governor and WICO would like to ignore the appeals process, but it is there, to guarantee Americans due process of law.

Whether the U.S. Army Corps of Engineers approves the permit application or not, according to both federal law and Virgin Islands law, the dredging and dumping cannot proceed unless and until the requisite members are appointed and the Board of Land Use Appeals process is fully completed.

If the Board of Land Use Appeals were to issue an illegal or incorrect ruling, that decision could also be fought in federal district court.

We should all remember that John deJongh Jr. was vehemently against dumping in Lindbergh Bay in 2000 but has totally reversed his opinion now that he is governor.

Gov. de Jongh said in his letter dated March 30, 2009, that he was gratified to learn that dumping dredge spoils in Lindbergh Bay “will not compromise, but will improve the quality of the water” This is a dramatic reversal, and is not supported by the facts, as cited in the Environmental Protection Agency’s May 21, 2009, letter to the U.S. Army Corps of Engineers.

I understand that the Governor of the Virgin Islands oversees and appoints the Board of Directors of WICO, which is pressing to dump in Lindbergh Bay as the cheapest solution, even though this dumping would harm, among other protected species, staghorn coral, elkhorn coral and their critical habitat.

The governor also is a member of the Coral Reef Task Force. Isn’t there an inherent conflict of interest in wearing these two hats?

I call on the governor to fulfill his duties and obligations to the people of the Virgin Islands; the people of the Virgin Islands have a legal right to appeal the erroneous CZM decision, which even the legal counsel to the V.I. Legislature said was an illegal decision.

Gov. deJongh must, by V.I. Law, fill the vacancies in the Board of Land Use Appeals so that the people’s appeal can proceed.

– U.S. Air Force Maj. David L. Maxwell (Ret.) lives on St. Thomas.

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