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EPA is Part of the Problem

 

October 10, 2014

Geoffrey Garrison, EPA Region II     Garrison_Geoffrey@epa.gov

Dear Geoffrey:

I am writing to follow-up on letters to you dated 8-23-13  and 6-16-14 (see below) concerning waste water discharges into US Virgin Island coastal waters and the testing of those waters which surround the small islands where we live.

In August 2013 when we met in person, you talked about the abject failure of DPNR to test our waters correctly, and admitted DPNR had not been testing our waters correctly for several years. You stated the EPA would be hiring a new independent contractor within the month, and that once they started testing our waters in September, 2013, that the EPA would make sure we citizens had the results quickly.

Instead, despite the convictions of DPNR Commissioners in 2008 for bribery and kickbacks, and the arrest of DPNR Chief of Enforcement, Tapia in May, 2013,  on September 24, 2013, Chief of Enforcement Tapia plead guilty to using DPNR boats to smuggle cocaine… and the EPA continued to fund DPNR to protect our waters and conduct our water tests.  With the head of enforcement and DPNR commissioners smuggling cocaine, accepting bribes, etc. the focus of DPNR has clearly not been to protect VI coastal waters, or test them correctly, as the EPA threw out DPNR’s water test results of previous years.

You stated on June 16, 2014 then again on July 1, 2014 that you would respond to my 6-16-14 letter.  You admitted on July 1, 2014 that although water tests were taken by DPNR in September 2013, the EPA still has not released the results of the tests of the waters which surround the islands where we live.

Geoffrey, with “transparency” as its mandate, how does the EPA justify keeping the water tests and discharges secret from US citizens for over a year? Further, under the attached MOUs for minorities and endangered species, which use mandatory language, the EPA has a specifically higher duty to act, protecting us VI citizens, and our endangered species.

I asked you by letter dated 8-23-13, and again by letter of 6-16-14, over 3 months ago for all sewage discharges into USVI coastal waters since August, 2013 The EPA has still not complied with that request, and as you know, it is supposed to respond within 30 days.

Geoffrey, I hereby request all sewage discharge documents from 1-1-2011 to the present, whether by VIWMA or private sources. DPNR is required to give this information to the EPA, as every dumping is a violation of several federal criminal laws and specific District Court orders.  Please make sure this FOIA request will be answered finally, fully and completely. Perhaps the EPA can forward these documents in sections by month or year, as there are many hundreds of documents involved.

DPNR does not list violations on their website, and the EPA’s website itself states that private dumping is twice as bad as VIWMA. NOTE: as stated in my letter of 8-23-14, this request includes ALL documents in any way referring to any overflows or discharges, of any kind, whether the discharges have been agreed to or not. In the past, VIWMA has not prepared Non-Compliance Reports for major discharges when they were communicated to DPNR or the EPA in advance, so please, we request ALL discharge communications, from ALL sources. Also the non-compliance reports themselves are supposed to state quantities and dates and times of discharge. As I proved to EPA attorneys Feinmark and Gonzalez, in 2010 alone, over 100 million gallons of raw sewage dumped by VIWMA was not reported by VIWMA on Noncompliance Reports.

Geoffrey, in addition to all VIWMA and private discharges since 1-1-2011, please get us the full scoop on the EPA approved USVI water test results since 2007, as according to the DPNR 2010 Report and our conversation in August of 2013, the EPA threw out DPNR results since 2007.

Geoffrey, is it in your purview as EPA liaison to speak with the hospital and medical staff in the VI, and then the health department?  Many of us have staph infections and even flesh eating bacteria. We also have had severe gastrointestinal problems, and need to know the poisons, bacteria, heavy metals etc. present in our waters. We have a right to know what we are swimming and fishing and snorkeling in. The coral and turtles are supposed to be protected as well. Please get us this information, Geoffrey. Thank you.

Sincerely, Susan

Susan Wolterbeek, President        GreenerVI.org          1A4 Estate St Peter             PO Box 306658

St Thomas, VI 00803          (340) 714-2233        susan@GreenerVI.org

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–Adlai E. Stevenson II, 1965 

Emails to and from EPA Rep. Geoffrey Garrison July, 2014:

Susan Wolterbeek <susanwolterbeek@gmail.com>
to Geoffrey June 19, 2014

Dear Geoffrey:

Hello. I hope that you are well.  When we met last August, 2013, you had said that finally the EPA was starting to test our waters. Up until then, as you know, we had no data (besides beach reports) beyond 2007, as DPNR’s 2008 and 2009 reports were thrown out by the EPA.

1. Was the 2007 testing done the same way the 2008 and 2009 testing was done?  If so, why were the 2007 results not thrown out as well?

2. Do we have the results yet from the tests conducted in September 2013?

3. Do those tests include nitrogen levels for all the USVI?

4. Are the tests which have been conducted since 2013 comprehensive, and what areas are they testing for?

5. To your knowledge, have there been ANY discharges in the USVI by waste management since we met last year?  Does Waste Management inform you directly when they dump raw sewage or chemicals?

6. According to the EPA itself, Waste Management is only 1/3rd of the problem, and since we can document hundreds of millions of gallons of raw sewage being dumped by Waste Management in any given year, is any organization or individual monitoring private dumping? Are you alerted when private dumping occurs?

7. As you are aware, the head of DPNR enforcement was indicted last fall for smuggling cocaine, using DPNR boats.  Clearly, DPNR did not put our waters first. Is anyone at DPNR actively investigating and taking action against dumping now?

8. How or where can the public access the information concerning dumping into USVI coastal waters and the actions taken by the local or federal government to stop it?

9. Are you aware of the larger proliferation of Staph infections in the USVI? Is the EPA in contact with the Dept. of Health in regard to our polluted waters? Is there anyone on point at the Dept. of Health that is a liaison to the public?

I appreciate hearing from you. Sincerely, Susan

________________________________________

Garrison, Geoffrey Garrison.Geoffrey@epa.govTo me June 19, 2014

Hi Susan,

I am well, thank you.  And yourself?

I am working on the information you requested.  I will send it to you as our staff provides it to me, instead of waiting for it all to come in.  Get back to you shortly.

Respectfully,

Geoff

Geoffrey Garrison

On-Scene Coordinator

EPA Region II

(340) 201-5328

Garrison, Geoffrey <Garrison.Geoffrey@epa.gov>
to me July 1, 2014

Susan,

Update on your information request:  Edna Villanueva from EPA is compiling the answers to your questions, I expect that we will be responding soon.

Geoff Garrison

(340) 201-5328

Response to Questions on Water Quality Testing and Discharges

Garrison, Geoffrey Garrison.Geoffrey@epa.gov

to me July 21, 2014:

Hello Susan,

Here are the responses to the first four questions; the answers are highlighted in “blue.”  We expect to answer the remaining questions soon.  As in this case, I will forward the answers as they are provided to me and not wait to consolidate them.

Respectfully,

Geoffrey M. Garrison

(340) 201-5328

1. Was the 2007 testing done the same way the 2008 and 2009 testing was done?  If so, why were the 2007 results not thrown out as well?

While there were issues with some of the data collected from 2008-2011 (as discussed in the attached 2010 and 2012 Integrated Reports), we are unaware of any data accuracy issues prior to these years.  Here is a link to the reports for 2010 and 2012:

http://www.epa.gov/region2/water/waterbodies/

2. Do we have the results yet from the tests conducted in September 2013?

Yes, we do have the September results, they are under QA review.  They should be final and available to the public within the next month or two. (Emphasis supplied).

3. Do those tests include nitrogen levels for all the USVI?

The parameters tested included Total Phosphorus, Total Kjedahl Nitrogen and Total Suspended Solids.

4. Are the tests which have been conducted since 2013 comprehensive, and what areas are they testing for?

Water Quality Monitoring is done according to parameters listed in VIDPNR’s Quality Assurance Project Plan (QAPP) and monitoring sites (there are a total of 128 stations around the three Islands).  The QAAP is currently being revised, the proposed list of parameters is as follows:  temperature, Dissolved Oxygen, salinity, pH, turbidity, secchi disk depth, total suspended solids, fecal coliform, enterococcus, Total Kjeldahl Nitrogen, and Total Phosphorus.

USACE: Please note that I have not received any further communications or responses to questions 5-9 from the EPA.

August 23, 2013

Geoffrey Garrison, EPA Region II, Garrison_Geoffrey@epa.gov

Dear Geoffrey:

It was great meeting you, and thank you for your further conversations. It seems that Buddy and you are really pushing for changes now, which is great. Thank goodness the EPA has finally taken the funding from DPNR for water testing. Yay, Buddy.  Jim McManus is an honest, scrupulous, knowledgeable man, with a great reputation.  He is eager to apply to be a contractor to collect the specimens and deliver them to a lab, etc. for your water testing in St. Thomas and St. John.  Is there an RFP or forms he must fill out?

Now, with the EPA overseeing the water testing, by reliable contractors like Jim who will follow the EPA specifications, we should get a good idea of which areas are polluted right now, and how.  Then, under the Endangered Species Act, (and both the inter-agency MOU’s on the ESA and also on treating minority populations with equality) the EPA must notify NOAA and coordinate a formal evaluation pursuant to Chapter 7 of the Act to formulate a plan of rejuvenation and re-colonization.  Thomas Bigford is the NOAA contact for this. Attached are  emails to and from him.

In March, 2010, Judge Gomez demanded VIWMA certify,  in written submissions, that all the necessary pumps of all pump stations were installed and working, and that there were back-up pumps, so that there would be no more “bypasses” of millions of gallons of sewage.

Instead, VIWMA signed those sworn statements to the Federal District Court, then “borrowed” a pump from another station, LBJ, to cover Fig Tree station, for example. A month later LBJ was pumping millions of gallons per day into Christiansted Harbor, when LBJ failed. This is just where the triathloners swam a few days later, as described in my letter to Judith 5-16-10.

Although VIWMA was given the money for all the replacement pumps in March, 2010, VIWMA still had not put in the purchase order…and did not do so for over 14 months, directly in contempt of the court orders of 3-16-10 and 3-31-10, as I told EPA officials repeatedly. No one from the EPA checked on VIWMA’s compliance with the Court Orders, even after I pointed them out.   Eduardo and Frankel refused to submit the actual bypass history to the Court, and grossly understated to the Court the raw sewage figures. See attached.

The dumping of hundreds of millions of gallons of raw, untreated sewage has continued ever since. Please scrutinize Exhibit 2- all the reports they told us about. It is obvious there are many Non-Compliance Reports missing- especially for the very large bypasses.

        When a Non-Compliance Report said “On-going Bypass”, I counted in my Summary only 1 day, but in fact the “ongoing” could have been “ongoing” for weeks or months, and often was. The very day I met with you, Udo Penther heard on the radio that one of the St. Croix stations was offline, meaning pumping raw sewage.

 

        Please ask Jim Casey to give you copies of all Non-Compliance Reports and all emails and other documents referring in any way to bypasses, since January, 2011. The records I received through the freedom of information act are incomplete. Often in 2010 and 2011, as you can see in Exhibit 2, VIWMA did not report some bypasses, especially the largest and most heinous bypasses, on Non-Compliance Reports, but mentioned them casually in letters and emails. So, we want VIWMA’s emails to DPNR and their emails to radio stations and newspapers proving compliance. Remember that VIWMA stated in a non-compliance report, for example, that a station was out for 13.5 hours, when the truth was really 60 full days, not hours, as they later admitted in Court May 11, 2011. 

In all these years, the local representatives of the EPA have never rejected VIWMA’s ludicrous “Non-compliance Reports” , which often have no start and stop dates and times, and none of the Non-compliance Reports state quantities. Is that the responsibility of Jose Font or Pedro Modesto, (who made a dramatic point of kissing May Adams Cornwall on the lips in front of all of us just before we commenced our February meeting). It is clear to all of us where their allegiance is, and that is to Cornwall.

        The only way you will have a whiff of what is really going on with VIWMA, Geoffrey, is if you (would please) demand all the non-compliance reports since 1/1/2011, including emails and or any other documents indicating bypasses, and send me copies. I will do what I did before, (Exhibit 2, Bypasses through 3-30-2011). I will write out a summary of all the Non-Compliance Reports, then compare it to all newspaper articles, and any other data like emails which refer to bypasses. Then you will have complied with my 3 FIO Act requests to the EPA in 11/12, 1/13 and 2/13, and I will be able to finally do the summary of the data, and send it to you and Buddy.

 

I cannot get the information from the radio stations, but you can always ask, or get them from DPNR and VIWMA – you are the big guns, so VIWMA, DPNR, and also the radio stations will probably give you what they have, including any emails from waste management- but you have to ask, especially for “all emails or other communications, oral or written” or they will not give them to you- I have been through this before, with them playing games.

 

Then I input the data and see what they reported on the summary, compare it to the radio lists (which would be the most accurate) and get a sense of where they are not telling the truth.  You see, they do usually make announcements on the West Indian radio stations, which cost VIWMA nothing.  On the other hand, with newspapers, VIWMA has to pay to put ads in the paper notifying everyone about the bypasses, then people like me see them and get upset…so history shows that VIWMA usually DOES NOT report to the newspapers, (let alone publishing the day before, all days of bypass and the day after it ceased),  in direct contravention of the judge’s very specific orders.

Thus, I believe those radio records/announcements, emails… would be very helpful. After all, VIWMA has to prove to the EPA that they did make the notifications…I just do not understand why those notifications were never questioned by the local EPA representatives, especially when I kept proving to them that DPNR was not posting and VIWMA was not publishing in the newspaper. So, Please send me copies!!

 

        Then I will do the second part of the legwork, as I did before,  and go through all the inconsistencies.  Please do take a long look at my Exhibit 2, (in the law suit) the Wastewater Discharges 1-1-10 to 3-23-11(which represented hundreds of hours of investigative work, which Eduardo did not use in court!! [See my letter to him dated 4-11-11. The EPA, through Attorney Donald Frankel,  grossly under-reported the amount of bypasses to the Court, even though I had lengthy conversations with Eduardo, pled with Frankel to use the data, which I had received from the EPA, but they refused.] That is why I finally filed suit a month later.  I would like to know if this is the continued attitude, for Region II to continue to NOT FOLLOW EPA’s #1 Mandate 2011-2013, to stop dumping raw sewage and prosecute the criminals.

 

        Now, with no downside of prosecution to stop the criminals, and instead the EPA’s continued willful refusal to follow its own mandate only currently encourages criminals to keep on dumping, for economic reasons! Surely that cannot be the intention of Region II. Why should a few dozen people ruin our coastal waters, kill coral, give us infections, ruin tourism… They have been getting away with it for over 29 years, as documented in federal district court, and those criminals are being paid large salaries, benefits and retirement monies (and given many millions in grant money by the EPA) to make us ill and ruin our environment!!  I am hopeful one of you in Region II will call Kim Lindquist, Chief of the Criminal Division of the US Attorney’s Office, and finally give him the green light to start prosecuting these criminals who can’t look past their pockets to see they are ruining their own home.

 

Once I have the dates, I then go to the college and physically scan through stacks of every Virgin Islands Daily News and St. Croix Avis, to see what notifications, if any, were given by VIWMA and/or DPNR. As you can see I made a series of notes at the end of the Summary tending to show that VIWMA has been grossly under-reporting the duration of and volume of bypasses, when they have reported them at all. After you have given me the raw data and I have completed the summary of raw sewage discharges 3-1-11- 9-1-13, you would be able to crosscheck with Jamal Neilson whether DPNR did actually post on all the affected beaches, as required, (or not) and whether they did print public notifications in the newspapers on every date.

So basically, if you get the Non-Compliance Reports and emails et al from Waste Management and the proof they alerted the radio stations, then also ask the radio stations,  I will do all the hours of gruntwork collating, reviewing and comparing the raw data you have given me. Okay?!

Many of us USVI environmentalists took part in a large EPA conference in 2011, and we plead with the EPA to change DPNR’s status to “at risk”. If DPNR is not doing the testing and not stopping the dumping, and the EPA knows this, why isn’t the status changed?  These dozens of people (VIWMA, DPNR, local EPA) are allowing this dumping of raw sewage to ruin the environment, endangered species and homes of hundreds of thousands- and so far the EPA will not even ask for sanctions or contempt, let alone criminal prosecution. Why? They are killing our endangered species, our health and our economy.  These people need to be stopped, and stripped of their pensions, which funds can be used to pay for the treatment of staph infections.

I have devoted thousands of hours of my time, so far unpaid, to put together facts and evidence which I lay at the feet of the bosses and attorneys of the EPA…who continually refuse to hold VIWMA and DPNR in Contempt of very specific Court Orders to post signs on beaches and inform the people in the newspapers every single day there is dumping by waste management. It is our right to know if it is safe to go swimming.  Why won’t Region II follow it’s #1 priority of stopping the dumping of raw sewage and prosecuting the offenders? Why won’t Region II PROTECT THE CORAL and TURTLES?

When the test results come back, action will need to be taken.  It would be best if we can formulate a plan now, which includes involving NOAA, and doing a formal evaluation. It may then involve the CDC and the Dept. of Health, too. GreenerVi.org will post all data and summaries, water tests, projects, etc.  We just need the information.  Thank you.

Sincerely, Susan

Susan Wolterbeek, President        GreenerVI.org          1A4 Estate St Peter

PO Box 306658     St Thomas, VI 00803          (340) 714-2233        susan@GreenerVI.org

 

This letter was published in the VI Daily News on March 9th, 2011

 

Judith Enck                                                                                                                    March 2, 2011

Regional Administrator, EPA Region 2

290 Broadway
New York, New York 10007-1866

Enck.Judith@epamail.epa.gov

Re: VIWMA, WAPA

Dear Administrator Enck:

We who live in the Virgin Islands are living every day in a crisis situation. Our economy is based upon tourism, yet millions of gallons of raw sewage are being dumped into our coastal waters, often on a daily basis, like today, and we are paying 5 times the national average for electricity. We need your help.

 

Waste Management

 

 

On  this 40th anniversary of the EPA, VI Waste Management and its predecessors have been dumping raw sewage into our territorial waters for 27 years. Last year, from January through April, VI Waste Management dumped  74+ million gallons of raw sewage over Long Reef in St. Croix alone. We emailed each other about this on February 6, 2010. The dumping of raw sewage continued for another 6 weeks at 1.2 million gallons a day until March 17, 2010, when the Federal District Court ordered them to stop, then they recommenced dumping again in April, stopping just three days before the Ironman triathloners swam in the affected waters. Did anyone inform the triathloners?

Many endangered species live in our coastal waters, such as coral, which is dependent upon clean, clear water. Only 3% of our coral remains from what was alive 30 years ago. Pursuant to 73 FR 72210, “Elkhorn and staghorn coral require relatively clear, well-circulated water and are almost entirely dependent upon sunlight for nourishment ……”

Hawksbill and Green Sea Turtles’ food sources are being destroyed. The Endangered Species Act is being violated, often on a daily basis. Section 7(a)(2) of the Act requires Federal agencies to satisfy two standards in carrying out their programs. Federal agencies must ensure that their activities are not likely to: (1) jeopardize the continued existence of any listed species, or (2) result in the destruction or adverse modification of designated critical habitat.

Section 7(a)(4) requires Federal agencies to confer with the Services on actions likely to jeopardize the continued existence of any species proposed for listing or result in the destruction or adverse modification of any proposed critical habitat.

Thus, the EPA, which has given a permit to VIWMA, and regulates VIWMA, is required to insure that VIWMA’s actions are not likely to jeopardize the Corals and Turtles in question, or adversely modify their Critical Habitat. Has anyone been researching the effect this raw sewage has had on Long Reef?

Solid waste disposal facilities or practices are not allowed to cause or contribute to the taking of an endangered or threatened species (40 C.F.R. § 257.3-2). Sewage sludge may not be placed where it is likely to adversely affect a threatened or endangered species (40 C.F.R. § 503.24).

Is there a plan to stop the dumping, and save our endangered species?  After my attached letter of May 17, 2010, you promised to look into all this, but my letters go unanswered.

Looking at 2011 from what was reported in the attached newspaper articles and press releases, on January 18, 2011, Waste Management began dumping raw sewage again over Long Reef, and on February 5, 2011, DPNR issued a warning advising residents to be cautious when visiting beaches at Christiansted Harbor until further notice. There has been no further notice.

On February 25, raw sewage was bypassed into the Figtree Gut, discharging into the sea east of Hovensa, and the area was evacuated.  Yesterday, EPA St. Croix stated this raw sewage is still discharging into the sea, right now, and that except for a condo association, no signs have been posted warning residents and tourists of these discharges and their health risks.

These discharges are not reported on DPNR or VIWMA websites, either. How are people supposed to know they are at risk, if they do not happen to read the newspaper on the particular day it is reported? Shouldn’t the DPNR warning be posted, near the beaches?  Locals and tourists need to be given the information at the beaches, especially the very young, the elderly, anyone with immune deficiencies, who are even more at risk. Is DPNR, EPA or the Health Department  going to warn the Ironman Triathletes this year, and suggest that they swim in a less polluted section of St. Croix waters? This is a very important event in St. Croix, and no one wants the athletes to be taken ill due to swimming in a polluted section of our territorial waters.

In the EPA’s new list of impaired waters, Christiansted Harbour, Long Reef and Salt River Lagoon are impaired with Enterococci, fecal coliform and turbidity, as is Magen’s Bay, and many other bays in St. Thomas. Has anyone evaluated these waters from an endangered species standpoint? Is there any plan to stop the dumping of raw sewage? Is there any plan to monitor, protect and improve the coastal waters of this territory after this dumping has finally stopped?

When I asked various bureaus at NOAA, they state that they are deferring to the EPA, which is why I have been asking what your plan is, or what if any action is being taken. Since the mandate of the EPA is one of “Overwhelming Transparency”, it is frustrating to not get any response from you to these grave concerns over the past year, particularly the attached letter of May 17, 2010, and the dumping continues even today.

In the 1990 Federal District Court Consent Order, (See Document Links in Right Column), DPNR and DPW, now VIWMA, were to have developed a comprehensive program for the prevention, control, and abatement of all pollution in the Territory, from that time forward, so that these emergency dumpings of raw sewage would never happen again.

Based on the findings of facts and the conclusions of law, the 1990 Consent Order determined that the numerous deficiencies plaguing the waste treatment facility and the plethora of violations generated thereby unreasonably expose the public and the environment to substantial endangerment. In 2011, 21 years later, unless there is a change NOW,  the endangered species have no hope, and this dumping of raw sewage will kill tourism, too. We who live here need the EPA’s and NOAA’s dynamic partnership right now, before it is too late.

 

WAPA

WAPA charges Virgin Islanders .38 a kilowatt, when the national average is .08. At almost 5 times the national average, we pay the highest in the nation.  The Inspector General’s Office of the Department of the Interior conducted a scathing audit of WAPA in December, 2009, and also of the local government for failing to pay its WAPA bills.

Even with the extremely high cost of electricity, we still have rolling blackouts, brown-outs and power surges frying our computers and appliances. We were without power for several hours two days ago.

Although many businesses are closing and many Virgin Islanders cannot now afford electricity in their homes, last year WAPA authorized its head to receive a 40% raise in pay, and unveiled plans for its new 15.98 million dollar home in subbase.

Some of the generators are over 40 years old, operating at as low as 13% efficiency, which thus wastes an incredible amount of oil. A net increase of just 10% power production efficiency would save us 18 million dollars per year. Nevertheless, WAPA is not choosing to spend its money on repairs and upgrades. For example, WAPA budgeted only 3.9 million for repairs for all of St. Thomas / St. John last year, yet the parts needed to repair just one generator cost over 4 million.

You can see the sticky, tarry soot billowing out of the smokestack on December 5, 2010, in the attached photograph. This substance, which is hazardous, gets into our air and also the coastal waters, and is not helping our sea life.

Clearly, in order to stop polluting and dramatically reduce our Territory’s cost of electricity to be in line with the national average, we need new energy efficient equipment and a sound financial plan. By partnering now with citizens and federal agencies, we can achieve these short term goals quickly, then focus together on the long term goals of reducing our consumption of fossil fuels by 60% in the next 15 years, as we are mandated to do.

We now have our website up and running at GreenerVI.org. Along with our own letters to federal and local agencies, we will be posting data on Coral and Endangered Species, and basic environmental information, such as local and federal environmental agencies, community organizations, and current initiatives, with links and contact numbers. We will also post EPA and DPNR press releases.

I am hopeful that you will soon tell us the EPA’s plan in regard to ceasing any more dumping of raw sewage, and when you will be working with NOAA to formulate the best plan to ameliorate and save our territorial waters. For WAPA, we need dynamic help from the Dept. of the Interior and the Dept. of Energy, in addition to the EPA and NOAA, to get us new generators, stop polluting, and with the help of the Inspector General’s Office and the data behind their audit, significantly cut our cost of electricity. I look forward to hearing from you in regard to these issues, as soon as possible. Thank you for your consideration.

Sincerely

Susan K. Wolterbeek

President, GreenerVI.org

cc: Lisa Jackson, Administrator, EPA

Miyoko Sakashita, Oceans Director, Center For Biological Diversity

Lowe Davis, VI Daily News

 

Note:  There was no reply from the EPA to the following letter over the past nine months, except “we are looking into it.”


Judith Enck                                                                                                                                                  May 16, 2010

Regional Administrator

EPA Region 2

290 Broadway
New York, New York 10007-1866

Enck.Judith@epamail.epa.gov

Re: VIWMA violating CWA and Endangered Species Act

Dear Judith:

I am writing to follow up on our conversation of May 6.   As you know by their own testimony as reported in the VI Daily News, VIWMA dumped 72 million gallons of raw sewage over Long Reef, which flowed downstream by Christiansted Harbor and the Salt River National Park. VIWMA dumped more raw sewage again April 24-27 (another 4.8 million gallons?) just days before world Ironman athletes swam 1.24 miles in Christiansted Harbor on May 2, 2010.  As I have been asking for, repeatedly, those waters must be comprehensively tested, to determine whether the athletes are at risk and should be contacted.

Attached is a list of the diseases the athletes can get from swimming in raw sewage; cholera typhus and SARS can cause outbreaks and death, and many of the other diseases can debilitate the athletes severely, like enlarged heart, Hepatitis A,B, Giardia Lambia, Gastroenteritis, Poliovirus Poliomyelitis. The EPA and Dept. of Health must have a good, competent scientist test and  evaluate all of the area of the waters the athletes swam through, as I said on May 6th.

If this thorough water testing still has not been done, 15 days after the competition, there is the appearance of cover up or lack of concern for athletes who focus much of their energy on keeping their bodies in a state of perfect health and fitness. Further, this non-testing and nondisclosure risks disease outbreaks around the world. I suggest that the EPA and the Dept. of Health reach an agreement as to who will pay for this testing of the athletes, and who will be in charge of collating the data. Remember also that tourists and locals are at risk as well, for swimming in the polluted water and eating fish which is contaminated.  Shellfish can reinfect humans with concentrations of viruses that are 100 to 900 times greater than in the surrounding water. High concentrations of infectious viruses can cause disease in unsuspecting consumers; they need to be informed so that their doctors know what to test for.  There may be a time element involved in the collective people’s health which we are harming further by inaction.

In regard to the endangered species and the marine ecosystem, a thorough survey must be conducted in conjunction with NOAA to determine what damage has occurred due to the illegal dumping, and what plan can be implemented to help the damaged ecosystem, endangered species and their critical habitat.  The oil spill in the Gulf of Mexico has killed many turtles and other endangered species and their habitats. It is all the more important to start enforcing the laws to preserve and protect the turtles, coral and other endangered species in the USVI. Only 3% of the coral remains from 30 years ago. There are 3 coral recolonization projects going on now in St. Croix coastal waters-how are these being impacted by the endless dumpings of raw sewage? What about tourism, our only economy? If  people come down with Giardia Lambia, they are going to tell all the travel agencies, no one will book in the USVI, and goodbye income for  Virgin Islanders. This would be the direct effect of DPNR’s DEP’s EEP’s and the EPA’s allowing VIWMA to keep dumping, month after month, decade after decade.

Fines are meaningless to VIWMA, unless they are assessed personally. We must enforce federal criminal statutes, now, or the dumping will continue, and there will be no coral or turtles left. All of this was avoidable and shockingly mismanaged. VIWMA is not complying with even minimum federal reporting statutes. VIWMA refuses to give simple financial data to the public, again in violation of federal law,  and VIWMA has not issued an Annual Report since 2005.

VIWMA and its predecessor have illegally dumped raw sewage for 26 years. According to May Cornwall, she has worked there for 24 years. Apparently, if she had only repaired and replaced one or two of the Figtree Station pumps during the 1 ½ years they were broken, the 72 million gallon dumping would not have occurred.  Now, VIWMA appears to be in violation of 4 of the 5 specific March 18th court orders of Federal District Judge Gomez, as I specified in my email to you dated May 4, 2010, and as shown below. Thus, VIWMA has continually violated court orders for decades, is currently in violation, and needs to be replaced, now.

What do you think of this strategy? I submit a Motion for Joinder, Citizen’s Suit, TRO and Motion to Waive 60 Day Notice in light of  dire circumstances in an open case and ongoing Contempt. The U.S. Attorney’s Office and EPA submit a Motion for Contempt, and specifically assent to our Motion for Joinder. What follows below are some of the issues to be considered for the citizen’s suit.  In my pleadings I will focus on both the ESA as well as the CWA. I will suggest to NOAA to join as well, in the same motion. In this way, both the endangered species act violations and the CWA violations, as well as all parties are before the Federal District Court. Should there be additional plaintiffs due to health issues, they can be classed separately or jointly with the main enforcement matter.

In regard to action and relief requested, an Expert in Waste Management would be appointed by the District Court to evaluate current VIWMA systems, equipment and personnel, and make recommendations to the District Court as to immediate needs and a plan for operating henceforth. Then, a private company would be appointed take over VI Waste Management, implementing the plan, as soon as possible, with EPA oversight. The District Court Judge would have to demand the VI Government pay for these private services up front, or in a tight fee structure.

The various plaintiffs would consult with NOAA and the US Attorney’s Office and decide which defendants face federal civil and criminal charges, jointly and severally, which may also include those who have chosen not to enforce these federal laws, meaning the DEP, DPNR, EEP and the local EPA.

A team of scientists, including marine biologists from UVI,  the National Park Service and NOAA would evaluate the initial survey, do further investigation as appropriate, and prepare an action plan with specific recommendations to the District Court, which could then be implemented.

The EPA has a mandate of overwhelming transparency, and thus has an obligation to keep U.S. citizens, particularly Virgin Islanders, informed and aware of its actions from January onward to stop VIWMA from dumping raw sewage over Long Reef.  I am asking to work with the EPA and NOAA in joining this suit and implementing the above plan of action. I look forward to hearing from you as soon as possible.

Sincerely yours,

Susan Wolterbeek

 

______________________________________________________________________

VIWMA  Should Be Held In Contempt of Court:

 

 

  1. “that the VIWMA shall comply with the public notification requirements listed in the Territorial  Pollution Discharge Elimination System permits.” It was my understanding from speaking with Mr. Casey that the announcements should be given on all three islands. There is a DEP Press Release dated February 5, 2010 monitoring a raw sewage discharge at Frenchtown Boat Ramp in St. Thomas, but there were no DEP Press releases in January, February or March stating VIWMA was dumping 1.2 million gallons of raw sewage per day, and that people should stay out of those waters. When VIWMA again dumped raw sewage from April 24-27th, there was no DEP Press release or any other warning I could find on VIWMA or DPNR websites, the VI Daily News, or television.  The only announcements that I have seen are the VIWMA commercials saying they are “preserving paradise”.
  2. “that two auxiliary diesel pumps shall be operational on St. Croix, the first by Wednesday, March 24, 2010, and the second by Friday, March 26, 2010.

Mr. Soderberg stated in his response of 4-30-10: “Regarding the pumping stations in St. Croix, we learned yesterday that two auxiliary diesel pumps at LBJ are currently not operational.” How long had they not been operational? Was the first auxiliary diesel pump operational by March 24, and the second auxiliary diesel pump operational by March 26th, or not?

  1. In an attempt to comply with orders concerning the Figtree pump station, Mr. Aubin certified that VIWMA took a house pump from the LBJ station. Doesn’t that then put the LBJ station at risk? By prior order of August 31, 2003, all house pumps must be operational at all times. Is LBJ currently operational with a house pump and back-up pumps? In light of Mr. Soderberg’s response, LBJ appears at risk.

On Friday April 16, 2010, the VI Daily News reported that Waste Management Authority   Executive Director May Adams Cornwall stated “The LBJ pump station is also down one pump.” and “”We do not have expectations to see anything like what happened at Figtree to happen on any of the islands again,” Cornwall said. It happened just 8 days later.

Indeed, according to a statement by VIWMA released on 4/27/10, “because of a broken force main”, VIWMA again dumped raw sewage over Long Reef from 4/24 through 4/27  “to reduce the impact to the adjacent neighborhood and prevent sewer overflows in Christiansted town and surrounding areas.”

  1. Steve Aubin, Chief Operating Officer certified to the Federal District Court on March 23, 2010, that St. Thomas’ Cancryn Pump Station, the island’s main station, has pumps that are operational and back-up pumps that can manage the effluent flow.

However, on Friday April 16, 2010, the VI Daily News reported that Waste Management Authority   Executive Director May Adams Cornwall stated that the Cancryn Station “has been without a working pump for close to nine months, Cornwall said. A contractor is diverting flow around Cancryn to another station while cleaning takes place. The station should be back up and running by the end of April, Cornwall said.”  Cornwall’s statement shows Aubin’s certification in March to be invalid.

Mr. Soderberg stated that the EPA is concerned that VIWMA has been dumping 1.2 million gallons per day of untreated sewage into our coastal waters. DPNR, DEP and the local EPA knew about this in January, and did not stop it, and the local agencies have allowed this dumping to happen, on and off,  for decades.

Even after I reported it to the EPA, on February 6, 2010, all of the above agencies allowed VIWMA to continue to dump a further 46.8 million gallons of raw sewage until mid-March, 2010, and again in April.

 

_______________________________________________________________________

WHAT’S IN RAW SEWAGE AND HOW IT CAN AFFECT YOUR HEALTH

 

Ever since the summer of 1854, when Dr. John Snow first linked sewage-contaminated water at the Broad Street pump with London’s worst cholera epidemic, we.ve known that discharges of untreated sewage can cause disease and even death.

In 1894, .scientists at the Massachusetts State Board of Health’s Lawrence Experimental Station had noticed a strong relationship between the severity of [typhoid] and the source of a city’s water supply. Consequently, they explored the link and confirmed that [the disease] was transmitted by ingesting water that had been polluted with human waste containing the typhoid bacillus.

 

Pathogens

A small drop of fecal matter can contain millions of microorganisms of many types, some of which are pathogenic. Microbial pathogens in raw or inadequately treated sewage can cause illnesses ranging from temporary stomach cramps to life-threatening conditions such as inflammation of the heart. While, in a healthy population, most of the illnesses resulting from exposure to inadequately treated sewage are relatively minor (respiratory illness; ear, nose or throat irritation; gastroenteritis), they can become serious in more vulnerable populations, including pregnant women, young children, the elderly, and people with suppressed immune systems (such as people with HIV, transplant recipients, and cancer patients). This group accounts for 20 to 25 percent of the U.S. population and is rapidly growing in number. Infants and children show a higher incidence of waterborne illnesses than the general population.

The elderly, too, are at greater risk people older than 74 have the highest mortality from waterborne or food-borne diarrheal illnesses. Adding insult to injury, some medications required to treat waterborne illnesses (such as metronidazole, which is used to treat amoebic dysentery) may be carcinogenic or have other toxic side effects.

While most of the waterborne pathogens enter the sewage system through human wastes, others may enter through animal wastes such as cat feces, which many urban pet owners flush down the toilet. Cat feces may contain the infectious protozoan Giardia lambia or the SARS (Severe Acute Respiratory Syndrome) virus. Conversely, inadequately treated human sewage can contaminate edible filter-feeding shellfish, such as clams, mussels, scallops, and oysters that eat plankton microscopic plants and animals by filtering them from water, which can reinfect humans with concentrations of viruses that are 100 to 900 times greater than in the surrounding water. High concentrations of infectious viruses can cause disease in unsuspecting consumers.

Nationally, at least 100 outbreaks of hepatitis and viral gastroenteritis have been associated with sewage-contaminated shellfish. Between 1973 and 1994, 65 cases of cholera were reported, primarily associated with consumption of raw oysters or undercooked crabs or shrimp from the Gulf of Mexico. Studies by the National Academy of Sciences and CDC suggest that most seafood-associated illnesses are related to seafood contaminated with untreated or inadequately treated sewage.

The Vibrio bacterium, a sewage related pathogen, is a growing problem in Florida, where almost 90 percent of fatal cases of V. vulnificus septicemia are due to consumption of raw Gulf Coast oysters. Other routes of exposure to pathogens in raw or inadequately treated sewage from overflows include, but are not limited to, direct contact with sewage that has backed up into homes, schools, institutions, and playgrounds; from exposure to contaminated drinking water or groundwater; or from diving, swimming, kayaking, canoeing or other activities in recreational waters.  Recreational exposure usually occurs through ingestion, but also can occur through the eyes, ears, nose, anus, skin, or genitourinary tract.

For example, 21 police scuba divers became ill after training in sewage-contaminated waters in New York City in 1982.

In a 1998 study, one-third of reported gastroenteritis cases and two-thirds of ear infections were associated with swimming in sewage-contaminated marine waters. The amount of human illness after exposure to marine water appears to be increasing, and there is evidence that the rate of infection is proportional to both the amount of time swimmers are exposed and the levels of pollution in the waters where they swim.

 

Waterborne Pathogens –  Associated Illnesses – and the Wastes

 

Bacteria:

Campylobacter jejuni Gastroenteritis  –  death from Guillain-Barré syndrome –  Human/animal feces

E. coli (pathogenic or enterovirulent strains) – Gastroenteritis – Domestic sewage

E. coli – adults: death from thrombocytopenia  –  Domestic Sewage

– children: death from kidney failure – Domestic Sewage

Leptospira Leptospirosis  – Animal urine

Salmonella typhi – Typhoid fever/reactive arthritis from certain strains – Domestic sewage

Other salmonella species

Various enteric fevers (often called paratyphoid), gastroenteritis, septicemia (generalized infections  in which organisms multiply in the bloodstream – Domestic sewage, animal wastes, food, compost

Shigella dysenteriae and other species – Bacillary dysentery – Human feces, domestic sewage

Vibrio cholera – Cholera/death – Domestic sewage, shellfish, saltwater

Yersinia spp. – Acute gastroenteritis (including diarrhea, abdominal pain)/reactive arthritis – Water, milk, mammalian alimentary canal

 

Viruses:

Adenovirus – Respiratory and gastrointestinal infections – Domestic sewage

Astrovirus – Gastroenteritis – Domestic sewage

Calicivirus – Gastroenteritis – Domestic sewage

Coxsackievirus (some strains) – Various, including severe respiratory diseases, fevers, rashes, paralysis, aseptic meningitis, myocarditis – Domestic sewage

Echovirus – Various, similar to Coxsackievirus (evidence is not definitive except in experimental animals) –  Domestic sewage

Hepatitis A – Infectious hepatitis (liver malfunction); also may affect kidneys and spleen  – Domestic sewage

Norwalk and Norwalk-like viruses – Gastroenteritis – Domestic sewage

Poliovirus – Poliomyelitis – Domestic sewage

 

Pathogenic Agent Acute Effects -Chronic or Ultimate Effects – Wastes

Reovirus – Respiratory infections, gastroenteritis – Domestic sewage

Rotavirus – Gastroenteritis – Domestic sewage

 

Protozoa:

Balantidium coli – Dysentery, intestinal ulcers  (especially swine) – Human/animal feces

Cryptosporidium parvum – Gastroenteritis/death in immuno-compromised host – Human/animal feces

Cyclospora cayetanensis – Gastroenteritis – Human feces

Dientamoeba fragilis – Mild diarrhea – Human feces

Entamoeba histolytica – Amoebic dysentery, infections of other organs – Human/animal feces, Domestic sewage

Giardia lambia – Domestic sewage

Giardiasis – diarrhea, abdominal cramps/failure to thrive, severe hypothyroidism, lactose intolerance, chronic joint pain – Human feces

Isospora belli and Isospora hominus – Intestinal parasites, gastrointestinal infection – Domestic sewage

Toxoplasma gondii Newborn syndrome, hearing and visual loss, mental retardation – diarrhea/dementia  and/or seizures – Cat feces

 

Helminths (worms):

Digenetic trematodes (flukes)

Schistosoma haematobium – Schistsomiasis – Human feces

Schistosoma japanicum – Schistsomiasis – Human feces

Schistosoma mansoni – Schistsomiasis – Human feces

Echinostoma spp. – Diarrhea – Animal feces

Faxciola hepatica – Liver necrosis and cirrhosis – Animal feces

Paragonimus westermani – Paragonimiasis – Animal feces and crustaceans

Clonorchis sinensis – Bile duct erosion – Human feces, raw fish

Heterophyes heterophyes – Diarrhea and myocarditis – Human feces, raw fish

Cestodes (tapeworms)

Diphyllobothrium latum – Diarrhea and anemia – Human feces, raw fish

Taeniarhynchus saginatus – Dizziness, nausea, pain, and inappetence – Human feces, raw beef

Taenia solium – Dizziness, nausea, pain, inappetence, cysticercosis = Human feces, raw pork

Echinococcus granulosus – Hydatidosis – Dog, other animal feces

Hymenolepis nana – Dizziness, nausea, pain, and inappetence – Human feces

Nematodes (roundworms)

Trichuris trichiura – Asymptomatic to chronic hemorrhage – Human feces

Strongyloides stercoralis – Strongyloidiasis – Human feces

Necator americanus – Iron-deficiency anemia and protein deficiency – Human feces

Ancylostoma duodenale – Iron-deficiency anemia and protein deficiency – Human feces

Ascaris lumbricoides – Ascariasis – Human, pig, and other animal feces

 

Emerging and Reemerging Infections

New and amazing developments in technology seem to pop up by the minute in our 21stcentury world, from chopsticks impregnated with antibacterials to goats engineered to produce spider silk proteins in their milk. Nature herself is a 24-hour, 7-day-a-week technology wizard, prodigiously engineering new .products. ranging from purple frogs to lethal viruses such as HIV and SARS.

Where new meets old, the consequences can be deadly. For example, a poorly maintained sewage collection system is implicated as a factor leading to the initial spread of SARS at the Amoy Gardens residential complex in Hong Kong. Local health officials concluded that people infected with SARS .excrete coronavirus in their stools, where it could survive for longer periods than on ordinary surfaces.

 

Escherichia coli, another emerging infectious organism, is mainly a foodborne pathogen, but has been transmitted through sewage-contaminated drinking water. An estimated 73,000 cases of infection and 61 deaths occur in the United States each year. Infection often leads to bloody diarrhea, and occasionally to kidney failure.

Over the past 25 years, Cryptosporidium has emerged as one of the most common causes of drinking and recreational waterborne diseases in humans in the United States. In the spring of 1993 in Milwaukee, municipal drinking water that was within bacterial standards was contaminated with Cryptosporidium. An estimated 400,000 people became ill and the disease contributed to the deaths of some AIDS patients (see the Milwaukee, Wisconsin case study in Chapter 4). The Cryptosporidium parvum parasite is found in every region of the country and throughout the world. C. parvum .spores,. called oocysts, can persist outside the body for substantially longer periods of time than other pathogens. Worse still, the oocysts are resistant to traditional types of drinking water treatment, including chlorination and ozonation.

VI Waste Management Authority (formerly DPW) has been dumping raw sewage into coastal waters of St. Croix, St. Thomas and St. John for decades.

 

To deal with the many violations of the waste management authority dumping untreated sewage, the local agencies entered into a Consent Agreement, in 1990, which is currently before the Federal District Court of the US Virgin Islands.

In the 1990 consent agreement, DPNR and DPW, now VIWMA, were to have developed a comprehensive program for the prevention, control, and abatement of all pollution in the Territory, from that time forward, so that these emergency dumpings of raw sewage would never happen again. Nevertheless, these illegal dumpings have occurred many, many times since 1990.

Based on the findings of facts and the conclusions of law, the 1990 Consent Order determined that the numerous deficiencies plaguing the waste treatment facility and the plethora of violations generated thereby unreasonably expose the public and the environment to substantial endangerment.

 

Dumping untreated sewage on a reef kills Coral and adversely modifies Coral’s Critical Habitat

 

Even the Consent Order of 20 years ago acknowledged that dumping raw sewage into coastal waters negatively impacts the marine ecosystem, in addition to imperiling human health.

Paragraphs 17 and 18 of the Consent Decree dated December 27,1990 state:

17.  DPNR records document an extensive chronology of unpermitted discharges of untreated sewage into the waters on all three islands.

18. DPNR took official notice of the fact that sewage pollution degrades the environment and imperils human health. Sewage contains nutrients such as nitrogen and phosphorous that when discharged into the marine environment can induce massive growths of algae. The decomposition of this algae consumes oxygen and can cause the level of dissolved oxygen in the water to be below that which can support many species of aquatic organisms.

These [sewage induced] algae blooms and the growth of other organisms then often stifle corals or outcompete them for space (Jones & Endean, 1976). In addition, direct sedimentation can smother a shoreline reef, and staghorn and elkhorn coral are particularly sensitive to sediment as they are among the least effective of the reefbuilding corals at trapping and removing sediment from their surface.

Untreated sewage increases the water’s turbidity, which, in turn, obscures the light on which corals thrive. Light deprivation ultimately will starve a coral, which is dependent on its symbiotic algae (zooxanthellae) to generate food photosynthetically (UVI, 2001; Bryant et al., 1998). NOAA website.)

Pursuant to 73 FR 72210, “Elkhorn and staghorn coral require relatively clear, well-circulated water and are almost entirely dependent upon sunlight for nourishment …”

 

President Clinton’s Executive Order 13089 mandates that the federal agencies protect Coral Reefs

Section 2. Policy. All Federal agencies whose actions may affect U.S. coral reef ecosystems shall: (a) identify their actions that may affect U.S. coral reef ecosystems; (b) utilize their programs and authorities to protect and enhance the conditions of such ecosystems; and (c) to the extent permitted by law, ensure that any actions they authorize, fund, or carry out will not degrade the conditions of such ecosystems.

Section 3. Federal Agency Responsibilities . In furtherance of section 2 of this order, Federal agencies whose actions affect U.S. coral reef ecosystems, shall, subject to the availability of appropriations, provide for implementation of measures needed to research, monitor, manage, and restore affected ecosystems, including, but not limited to, measures reducing impacts from pollution, sedimentation, and fishing.

To the extent not inconsistent with statutory responsibilities and procedures, these measures shall be developed in cooperation with the U.S. Coral Reef Task Force (USCRTF) and fishery management councils and in consultation with affected States, territorial, commonwealth, tribal, and local government agencies, nongovernmental organizations, the scientific community, and commercial interests.

Did the EPA contact the Coral Reef Task Force, and let them know VIWMA was dumping close to a protected National Park Marine Reserve, and upstream from Salt River, a new National Park?

At the 2008 USCRTF meeting in Kona, Hawaii, the USCRTF celebrated its 10-year anniversary and issued a renewed call to action to conserve and protect coral reefs, noting the severity of the threats facing coral reefs and the immediate need to take action:

It is clear that the USCRTF, with partners, must significantly increase our collective effort to address the factors over which we can exercise control. The USCRTF must take immediate action to respond to these threats and, in turn, seek to sustain our coral reef ecosystems and the communities that depend upon them….Science has demonstrated that reef communities can recover when they are protected and stressors are removed. Urgent action is needed to reduce greenhouse gas emissions. In the meantime, precious time for coral reef ecosystems can be secured through increased protection from land and marine pollution, unsustainable fishing, development, and other stressors, all of which we know can damage coral health. The time to act is now.

 

Buck Island Reef National Monument is a No Take Marine Reserve, and the flow of raw sewage flows down toward Salt River National Park

 

The dumping of 72 million gallons of raw sewage over Long Reef is out of the LBJ pump station, in close proximity to the Buck Island Reef National Monument, and is upstream from the Salt River National Park. Did the EPA, or any local agency, contact the National Park Service in January? Has the EPA contacted NPS yet? NPS established fully protected marine reserves at Buck Island Reef National Monument in order to restore fish populations and reef ecosystems and protect corals from physical damage.

Buck Island Reef National Monument was established to preserve “one of the finest marine gardens in the Caribbean Sea.” The park is one of a few fully marine protected areas in the National Park System. The 176-acre island and surrounding coral reef ecosystem support a large variety of native flora and fauna, including the hawksbill turtle and brown pelican.

State-Federal Partnerships have been made on Marine Reserves and Ecosystem Based Research. “No-take” marine reserves have been established at Buck Island Reef National Monument, to restore and protect marine ecosystems and species they support from overfishing and anchor damage. The National Park Service has a clear scientific mandate to evaluate the performance and potential restorative impacts of these new reserves.

Fortunately, as reported by the reserve, it appears to be upstream from the effluent flow. Therefore, hopefully, it appears there was no damage to the reserve.

 

 

However, the Salt River Bay National Historical Park and Ecological Preserve is downstream and around a corner from the effluent flow.

 

Salt River Bay National Historical Park and Ecological Preserve was created in 1992 as part of the National Park System. The National Park Service and the Government of the United States Virgin Islands jointly manage this 1,015-acre park. The area’s blend of sea and land holds some of the largest remaining mangrove forests in the Virgin Islands, as well as coral reefs and a submarine canyon. It’s said to be the place where Christopher Columbus first encountered the native people of this hemisphere and is a truly special place for both its ecological and historical significance.

Salt River National Park has received a $1.25 million federal grant to design a marine education and research center on St. Croix. The Assistant Secretary of the Interior of Insular Areas Anthony M. Babuata visited St. Croix, and presented the grant to the National Parks Service.

 

Staghorn and Elkhorn Coral and their Critical Habitat are protected under the Endangered Species Act

 

Acropora Fact SheetAcropora Fact Sheet

 

Staghorn and Elkhorn Coral and their Critical Habitat live in the coastal waters surrounding the U.S. Virgin Islands, and they are protected under the Endangered Species Act.  NOAA has devoted many millions of federal dollars to programs which preserve these Corals, and the Nature Conservancy, working with NOAA,  has three project areas in St Croix coastal waters, recolonizing coral.

Coral reefs are among the most diverse, biologically complex and valuable ecosystems on Earth. Often called rainforests of the sea, coral reefs provide economic and environmental services to millions of people as valuable areas of natural beauty, sources of food, jobs and revenues, recreation and tourism and shoreline protection.

“The United States has a significant national interest in protecting its coral reef ecosystems. The area of coral ecosystems within 10 fathom and 100 fathom depth contours respectively in tropical and subtropical water of the United States is 36,813 sq km and 143,059 sq km” (Rohmann et al. 2005). The majority of U.S. coral reefs making up the referenced areas are within State and Territorial waters.

 

Green Turtles, Hawksbill Turtles and Leatherback Turtles are protected by the Endangered Species Act

 

Green Turtles and Hawksbill Turtles reside in the waters surrounding St. Croix, and do move around, so this 72 million gallons of raw sewage is now in their home. Green Turtles and Hawksbill Turtles depend upon turtle grass and sponges for food, but cannot eat if their food is tainted by raw sewage. Leatherback turtles, also protected by the ESA, swim in and lay their nests of eggs on the shoreline of several areas in St. Croix.

 

VIWMA may not dump raw sewage where it will adversely affect Threatened or Endangered Species

 

Solid waste disposal facilities or practices are not allowed to cause or contribute to the taking of an endangered or threatened species (40 C.F.R. § 257.3-2). That statute states in part:

§ 257.3–2 Endangered species.

(a)    Facilities or practices shall not cause or contribute to the taking of any endangered or threatened species of plants, fish, or wildlife.

(b)   The facility or practice shall not result in the destruction or adverse modification of the critical habitat of endangered or threatened species as identified in 50 CFR part 17.

Sewage sludge may not be placed where it is likely to adversely affect a threatened or endangered species (40 C.F.R. § 503.24).

§ 503.24 Management practices.

(a)    Sewage sludge shall not be placed on an active sewage sludge unit if it is likely to adversely affect a threatened or endangered species listed under section 4 of the Endangered Species Act or its designated critical habitat.

 

DPNR, DEP, DEE, CZM and VIWMA  May All Be Found in Violation of the ESA

 

VIWMA must face the consequences of its actions and fully comply now with Federal District Court orders. Neither DPNR, DEE  nor the DEP stopped the dumping either, until 2 months later, at 1.2 million gallons per day.  These agencies have been violating federal laws and their own mandates for decades, and no one has been prosecuted for these illegal actions. Unless strong criminal prosecutions are brought, the dumping will continue.

The Virgin Islands Department of Planning and Natural Resources is a member of the U.S. Coral Reef Task Force, as is Governor deJongh. Clearly, DPNR is not following its mission, neither is it enforcing federal laws, such as the Endangered Species Act, nor following the mandates, resolutions or local action strategies of the U.S. Coral Reef Task Force. Instead, DPNR, by choosing not to actively enforce, is actively condemning the endangered species.

Janice Hodge, Director of the Virgin Islands Coastal Zone Management, is a member of the U.S. All Islands Coral Reef Committee, whose mission is:

As official representatives of our Governors for the coral reef initiative, we will strive to elevate awareness of coral reef issues, develop local capacity and partnerships; implement actions in a coordinated regional voice; develop policy and advocate for jurisdictional needs; and coordinate bottom-up, locally-grown initiatives to ensure long-term sustainable use of coral reefs.

 

CZM also has a duty and obligation to enforce and uphold federal laws and protect endangered species and their habitat.

The Division of Environmental Protection is responsible for environmental protection and the enforcement of environmental laws and regulations in the US Virgin Islands. The Division of Environmental Protection (DEP) receives funding and has been delegated responsibility for environmental protection by the United States Environmental Protection Agency (EPA), under the auspices of EPA Region 2.

The mandates of the Division of Environmental Protection are to protect and conserve the natural resources of the Government of the US Virgin Islands; air, water and land upon which life depends, and the health, comfort, and repose of the public.

The Endangered Species Act affects regulation under the Clean Water Act. The Services have a policy to ensure coordination with State Agencies for gathering information in implementing the consultation program. [59 FR 34274-34275 (July 1, 1994)]  In early 1999 EPA, FWS, and NMFS published a draft Memorandum of Agreement regarding enhanced coordination under the Clean Water Act and the ESA. 64 Fed. Reg. 2741-57 (January 15, 1999).

 

The EPA is in Violation of the Endangered Species Act

 

During the 2 month period of dumping, was the EPA working closely with NMFS and FWS? Did those agencies know, and allow this dumping to continue?

Section 7(a)(2) of the Act requires Federal agencies to satisfy two standards in carrying out their programs. Federal agencies must ensure that their activities are not likely to: (1) jeopardize the continued existence of any listed species, or (2) result in the destruction or adverse modification of designated critical habitat. Section 7(a)(4) requires Federal agencies to confer with the Services on actions likely to jeopardize the continued existence of any species proposed for listing or result in the destruction or adverse modification of any proposed critical habitat.

Thus, the EPA, which has given a permit to VIWMA, and regulates VIWMA, is required to insure that VIWMA’s actions are not likely to jeopardize the Corals and Turtles in question, or adversely modify their Critical Habitat. Has anyone been researching the effect this raw sewage has had on Long Reef?

If the EPA knew on or before January 17, 2010, that federal agency had an affirmative duty to consult with NMFS, before the dumping. Once the dumping commenced, the EPA had an obligation to stop VIWMA, immediately, pursuant to the ESA, President Clinton’s Executive Order, and the “no-take” designation of the Buck Island Reef National Monument marine reserve.

The NMFS Director, Office of Protected Resources can pursue the need to consult with the action agency (EPA). The Services cannot force an action agency to consult. However, if the proposed action results in take of a listed fish or wildlife species, the matter should be referred to either the FWS Law Enforcement Division and the Office of the Solicitor, or the NMFS Office of Law Enforcement and the Office of General Counsel – depending upon which species are involved.

Additionally, if the action agency requests consultation after-the-fact, that consultation cannot eliminate any section 9 liability for take that has occurred already.

 

Violating the Endangered Species Act has Civil and Criminal Penalties

SEC. 11. 16 U.S.C. 1540 (a) CIVIL PENALTIES.—(1) Any person who knowingly violates any provision of this Act, may be assessed a civil penalty by the Secretary of not more than $25,000 for each violation. Each violation shall be a separate offense. Public Law 100-478, enacted October 7, 1988, (102 Stat 2306) included the following provisions:

  • Redefines the definition of “person” to clarify law applies to municipal corporations.

The court shall hear such action on the record  made before the Secretary and shall sustain his action if it is supported by substantial evidence on the record considered as a whole.

(b) CRIMINAL VIOLATIONS.—(1) Any person who knowingly violates any provision of this Act, of any permit or certificate issued hereunder, or of any regulation issued in order to implement subsection (a)(1)(A), (B), (C), (D), (E), or (F); (a)(2)(A), (B), (C), or (D), (c), (d) (other than a regulation relating to recordkeeping, or filing of reports), (f), or (g) of section 9 of this Act shall, upon conviction, be fined not more than $50,000 or imprisoned for not more than one year, or both. Any person who knowingly violates any provision of any other regulation issued under this Act shall, upon conviction, be fined not more than $25,000 or imprisoned for not more than six months, or both.

(e) ENFORCEMENT.—(1) The provisions of this Act and any regulations or permits issued pursuant thereto shall be enforced by the Secretary, the Secretary of the Treasury, or the Secretary of the Department in which the Coast Guard is operating, or all such Secretaries. Each such Secretary may utilize by agreement, with or without reimbursement, the personnel, services, and facilities of any other Federal agency or any State agency for purposes of enforcing this Act.

(2) The judges of the district courts of the United States and the United States magistrates may within their respective jurisdictions, upon proper oath or affirmation showing probable cause, issue such warrants or other process as may be required for enforcement of this Act and any regulation issued thereunder.

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