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Army Corps Letters

Letter to the Army Corps – part 1, Published in the VI Daily News

Letter to Army Corps of Engineers details arguments against Lindbergh Bay dumping

Susan K. Wolterbeek

Monday, October 5th 2009

Part 1 of 2

In regard to the West Indian Co. and V.I. Port Authority’s application to dump dredge spoils in Lindbergh Bay, after speaking with people who work with U.S. Sen. John D. Rockefeller IV, chairman of the U.S. Senate Committee on Commerce, Science and Transportation, I have written to Ellen Doneski, legislative director of that committee.

I also spoke with and wrote a similar letter to Katherine Romans, who works with the Subcommittee on Insular Affairs, Oceans and Wildlife, under the Congressional Committee on Natural Resources. Both committees now have preliminary documents to aid them in investigating this matter.

On Sept. 28, I also wrote the following open letter to Jose Cedeno-Maldonado, project manager for the U.S. Army Corps of Engineers, Antilles Office, headquartered in San Juan:

“Dear Mr. Cedeno-Maldonado:

It was a great pleasure to meet with you. Thank you for your patience in dealing with non-biologists, and for your conscientious attitude in regard to this matter. Pursuant to your suggestion, I wrote to Mark Reiss, of the EPA, concerning WICO’s continuing refusal to release Lancaster Laboratories’ entire report.

On Friday, Mr. Reiss and I had an in depth conversation for over two hours, touching on many subjects. In regard to the issue of the lab report, Mr. Reiss has not seen the entire laboratory report either.

Therefore, since the report has been subpoenaed, and concerned citizens and V.I. senators have repeatedly requested this report, as you are the U.S. Army Corps of Engineers project manager, won’t you please direct Permit Applicant WICO to have Lancaster Laboratories send a copy of the entire laboratory report directly to the CZM, who should then make the report available to anyone wishing to view and copy any portions of it?

Surely the federal agencies do not agree with WICO, in secreting the report, and refusing to allow U.S. citizens to see the full analysis of the sludge intended to be dumped in our public bay.

Alternative Sites

Time Constraint Created by WICO

In this matter, although timing was apparently critical to the applicant, WICO chose to start the application process quite late. WICO did not submit additional documents, plans and studies which were requested by the CZM.

WICO chose to not consult early in the application process with the EPA and other federal agencies. WICO chose to submit materials that were kicked back by the federal agencies as incomplete, inadequate and not supported by facts.

Thus, WICO has created its own time pressure. WICO then has been using this time pressure, of its own making, as its excuse to severely restrict the careful consideration of alternative sites.

WICO representatives have said emphatically, repeatedly, that they must start dredging by the first week of September, or they will not have the time to complete the project by the target date. It is now in the fourth week of September, thus the target date is no longer possible.

If WICO would still like to continue with the project, then it must comprehensively consider alternative dump sites, which is mandated by federal law, and which you repeatedly requested in your letter dated June 8, 2009, and again in your letter dated July 21, 2009, when you further reminded WICO of 40 CFR Part 230.10 (a): “[N]o discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences.”

St. Croix Alternative

In WICO’s first set of responses, dated June 24, 2009, answering your letter of June 8, 2009, WICO stated: “In regard to the use of uplands in St. Croix for sediment disposal, we have learned that the landfill at this location is in the process of closing down and is not available to take additional fill material.”

The above statement is false. To underscore this fact, the St. Croix Renaissance Group wrote a letter on July 7, 2009, specifically stating its willingness to receive the dredging spoils on a part of its 1,200 acres of land in St. Croix. This organization has always been willing to receive these dredging spoils.

Later, in WICO’s Response to Agency Request for Additional Information Part 2, dated Aug. 4, 2009, WICO stated: “The owners have since withdrawn all offers to accept the dredge spoils for this project and have only agreed to pursue permits for acceptance of future material. (See e-mail from Jack Thomas of the Renaissance Group at Attachment D.)”

However, said e-mail does not state that the St. Croix Renaissance Group has withdrawn their offer. Indeed, they never have.

The above statement by WICO is also false, or at the very least, grossly misleading, with no attempt made to verify the facts. By letter dated Sept. 15, 2009, the St. Croix Renaissance Group again confirmed and reiterated their wish to receive the dredging, stating:     ”We are at a loss over the statement made and confusion regarding the dredge spoils, as our letter dated July 7, 2009, states contrary.”

Twice, the U.S. Army Corps of Engineers has requested that WICO include the St. Croix site in their analysis, and twice WICO has answered your request with false information, to preclude the St. Croix site from being considered as an alternative site to Lindbergh Bay.

Title 18, United States Code, Section 1001 makes it a crime to knowingly and willfully make any materially false, fictitious or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

U.S. Army Corps of Engineers recognizes this statute as applying to statements made by applicants in permitting matters, and cautions them accordingly. The requirement that the falsehood must be “material” is met if the statement has the “natural tendency to influence or [is] capable of influencing, the decision of the decisionmaking body to which it is addressed.” (United States v. Gaudin, 515 U.S. 506, 510 (1995))

The alternative sites issue is at the crux of this case; if WICO dumps elsewhere, there is no opposition to its permit application.

But WICO does not want to dump in St. Croix, or even have the federal agencies consider the St. Croix site, thus it made the two statements cited above. WICO has given you false information, in writing, on two sep.

Does U.S. Army Corps of Engineers have a protocol for dealing with applicants who give false information?

Will U.S. Army Corps of Engineers reject the permit at this point, or have you reiterated your requests of June 8 and July 21, 2009, that WICO provide a comprehensive analysis of the St. Croix site now?

Mr. Reiss stated that he has not been informed of any details about the St. Croix site, so one can conclude that the site has not been under consideration yet.

This alternative site is on a large tract of land and may be ideal for the dredge spoils. With the Sept. 15, 2009, letter from the Renaissance Group in hand, will WICO now be performing that alternative site analysis U.S. Army Corps of Engineers has been requesting?

Puerto Rico Dump Site

Similarly, there are Puerto Rican dump sites available, and apparently the off-shore site between Vieques and the eastern coast of Puerto Rico, Yabocoa Harbor, offers a reasonable disposal alternative for certain Puerto Rican dumping projects; anyone else would require the granting of a waiver, or a change in the rule.

As recently as May 27, 2009, V.I. Sen. Craig Barshinger purportedly spoke with Mr. Sindulfo Castillo, and Mr. Castillo stated that: “The Army Corps hopes that the Applicant will consider alternate dumping sites. There are alternate dumping sites available right now.”

The EPA would have to amend the rule to allow dredging spoils from the USVI. Apparently, if WICO had only requested a waiver from the EPA, early on, when WICO should have begun this permitting process, Mr. Reiss would have then gone through the analysis and necessary steps to make a determination whether to modify the language to allow WICO’s use of the dump site.

In that instance, no one would have opposed the permit, and WICO would be going forward with everyone’s backing, once WICO had finally given sufficient data to satisfy the various federal agencies. There is nothing to prevent WICO from requesting a waiver, or modification of the rule, now.

Is it not reasonable to request that WICO fully explore this option, particularly when it has been already considered to be an appropriate and available alternative by Mr. Castillo of U.S. Army Corps of Engineers?

Will you recommend that WICO apply for a waiver, now, since these sites are available and time is no longer an issue for WICO?

This permit would then be in compliance with 40 CFR Part 230.10, should WICO dispose of the dredging at the St. Croix or the Puerto Rico site, neither of which are inhabited by endangered or threatened species, or people, as opposed to Lindbergh Bay, which is teeming with endangered and threatened species, and is utilized currently by thousands of tourists, three hotels, a restaurant and a children’s park.

Letter to the Corps of Engineers — part 2, Published in the VI Daily News

Letter to Corps of Engineers details arguments against Lindbergh Bay dumping

Susan K. Wolterbeek

Tuesday, October 6th 2009

In regard to the West Indian Co. and V.I. Port Authority’s application to dump dredge spoils in Lindbergh Bay, on Sept. 28, I also wrote the following open letter to Jose Cedeno-Maldonado, project manager for the U.S. Army Corps of Engineers, Antilles Office, headquartered in San Juan:

WICO’s Dumping Will Cause Harmful Turbidity and Sedimentation

Previously, when WICO’s co-applicant, the VI Port Authority and expert Amy Dempsey investigated dumping into Lindbergh Bay in 1998, the Port Authority wrote:

“After the inspection of the site and revisiting the proposed area to be dredged in Charlotte Amalie Harbor, we could not recommend the deposition of this fill material in the depression in Lindbergh Bay. Much of the material to be dredged is just as silty and fine as that in the depression in Lindbergh Bay. Deposition of these materials in Lindbergh Bay would further degrade the water quality within Lindbergh Bay.”

Neither WICO nor their expert Dempsey have shown how that material has become less silty in the past 11 years, or why it would not degrade the water quality now.

The primary concern of all the federal agencies in this case appears to be WICO’s ability, or lack thereof, to prevent sediment and turbidity from fouling the waters and injuring the aquatic resources of Lindbergh Bay.

The EPA recommended rejecting WICO’s permit application, writing in May 21, 2009: “In summary, EPA believes that the proposed dredging of the Charlotte Amalie Harbor and the subsequent disposal of the dredged material at Lindbergh Bay could result in unacceptable impacts to significant aquatic resources.”

In its response to said EPA letter, and being fully aware of the vital importance of this issue, WICO stated that: The dredged material, including sediment and water, resulting from the mechanical dredging will be loaded into a containment barge with no discharge of sediments or water to the surrounding environment. The material and water will be transported to Lindbergh Bay where it will be placed using a tremie tube. No supernatant water will be released or discharged from the barge at the dredging site.”

Clearly, the EPA did not believe the above statement by WICO, stating by email dated July 15, 2009:

“Release and resuspension of these fines represents the greatest ecological threat

associated with this project. It is irrelevant whether the grain size distribution of the

sediment is within the normal range for pristine sites and its relationship to the

grains size distribution within the Lindbergh depressions is also irrelevant. Releases

will occur during and shortly following discharge before the material has de-

watered and compressed.”

The National Marine Fishery Service found WICO’s statement to be false as well, writing on July 10, 2009: “Applicant states that “turbidity will be greatly reduced” by the use of a clamshell bucket. NMFS has never observed a clam shell dredge that did not leak like a sieve as it was being lifted up from the bottom and into the barge, so we would like information regarding the new clam shell technology available to the applicant.”

NMFS continued: “Do not believe the statements regarding supernatant water are possible. How can they ensure no water enters tremie tube for discharge in Lindbergh Bay if material will be taken immediately to disposal site once it is dredged?  Where will the water go? Do not believe that barges are ever 100 percent contained, but even if they are, where will water that drains from dredged sediments into barges be disposed of? How will the turbidity curtain “force any suspended sediment downward into the water column? … In addition, in the response it is indicated that the boom to be used in Lindbergh Bay needs to allow some escape of sediment-laden water to remove pressure on boom.”

Thus, even if the proposed dumping were to work exactly according to plan, turbidity and sedimentation discharges will result, and are expected to occur, from the projected dumping in Lindbergh Bay.

WICO admits this in its response on June 24, 2009, to comments from attorney Jeff Weiss dated May 22, 2009:

“Pressure created by tidal changes and the depositing of dredge spoils must be

relieved and some water containing sediments must be allowed to escape.”

Another factor to bear in mind is that although each individual planned discharge might not cause significant sediment or turbidity, the cumulative effects and/or the secondary effects of these discharges can still result in a major impairment of the water resources and interfere with the productivity and water quality of existing aquatic ecosystems.

Further, one must fully consider the likelihood of accidental groundings or malfunctions of barges, human error and any accidental or incidental spills from the barges along the way. Will the barges be 100 percent contained and enclosed? If not, how much spillage will occur, how often, from each barge load? Will these barges be driven under their own power, or pushed by tugboats?

WICO intends to have its workers dredging and dumping onto barges, then navigating to Lindbergh Bay, watching for turtles and other wildlife, and making sure there are no sludge spills, in all weather, at all hours, nonstop, 24 hours a day, to dump the barge loads, yet WICO only intends to have two wildlife monitors for this project. Either both people will be working 12 hour shifts for 90 days without rest, or WICO plans to dredge and dump some of the hours or some of the days without any monitors present.

WICO says it is easy for the monitors to spot plumes, and, if necessary, stop work immediately. The biologists cannot see the plumes if they are sleeping, or off duty. Without a team of several independent wildlife monitors to watch for turtles, to watch for spillage and accidents and to stop all activity when necessary, the monitoring plan is unreasonable, and the likelihood of negative impacts to aquatic resources are probable.

Staghorn Coral

In the case at hand, both staghorn and elkhorn coral are found living in Lindbergh Bay, and WICO has not disputed that fact. Whereas elsewhere in the USVI these threatened corals are dying off, so that we only have 3 percent left of the coral of 30 years ago; in Lindbergh Bay the elkhorn corals are actually expanding, growing new recruits.

Under section e. Threatened & Endangered Species, the U.S. Army Corps of Engineers specifically lists staghorn coral as one of the several endangered and threatened species in Lindbergh Bay which WICO needs to address in various sections of the application.

However, WICO did not analyze the project’s impact on staghorn coral at all, completely ignoring a threatened species.

Where is the staghorn coral in Lindbergh Bay? WICO identifies this threatened species as being located in the fifth quadrat of its benthic survey, but does not include staghorn coral in any of its lists, responses or analyses, in contravention of U.S. Army Corps of Engineers guidelines and the ESA.

The dump site is close to the Critical Habitat of Staghorn and Elkhorn Coral.

Under “Potential Effects Species / Critical Habitat” WICO states: “There is no hardbottom in the project area … rocky shorelines along the edges of the bay do provide attachments for corals, but these areas are well outside the influence of the project.”

How many feet away is “well outside the influence of the project”? WICO’s own Exhibit L reveals that the critical habitat of the staghorn and elkhorn coral almost completely line both sides of the bay. Therefore, this is another area of the application where the facts are again in conflict with WICO’s misstatement, in that some sections of the threatened corals’ critical habitat are very close to the dumping site.

Pollution, sedimentation and turbidity are stressors to Staghorn and Elkhorn Coral

There is disagreement about the level and type of pollution in the dredge spoils, and since WICO refuses to disclose the full lab report, the complete data and analysis are still not known.

When pollutants are discharged, nutrient levels (nitrates and phophates) in the water can increase. This can lead to an excessively nutrient-rich environment (eutrophic), which encourages algae blooms and the growth of other organisms that can 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.

Sediment may also increase 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.)

This project would damage Staghorn and Elkhorn Corals’ Critical Habitat.

Thus far, WICO has continually tried, over the past several months, in a long series of questions and responses, plans and diagrams, to prove to the federal agencies that the proposed dumping will not cause turbidity and sedimentation, detrimentally affecting Lindbergh Bay. WICO has not been able to satisfy the agencies yet.

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

Staghorn and elkhorn coral are protected under the Endangered Species Act. Pursuant to the 4(D) Rule of the ESA, the definition of “take” includes that no one may damage the species’ habitat or discharge any pollutant or contaminant that harms the species.

Pursuant to 40 CFR Part 230, subpart B, Sec. 230.10 (b) (3), no discharge of dredged or fill material shall be permitted if it results in the likelihood of the adverse modification of critical habitat.

With the close proximity of the dumpsite to sections of the staghorn and elkhorn corals’ critical habitat, which is particularly sensitive to sediment and turbidity, combined with the agreed fact that discharge of sediment and turbidity will occur, even during normal operation, there is indeed a likelihood of the adverse modification of critical habitat. Therefore, the permit should be denied.

This project will negatively impact the food source of a protected species

I am an avid snorkeler, and have observed that many large areas of other seagrass beds around St. Thomas in the past few years have turned yellowish brown or died off completely. Lindbergh Bay is blessed with lush beds of seagrasses that serve as an “extremely important nursery ground” (Kadison) for thousands of juvenile queen conch, as well as being the food source of the threatened green turtles who live in Lindbergh Bay, and who rely heavily on those seagrasses.

As shown by the Kadison Environmental Marine Survey dated March 14, 2009, turtle grass now comprises 90 percent of the total composition of seagrasses in the bay. “This is important to note because turtle grass generally takes longer to establish in a disturbed area than manatee grass or sea vine, and is considered a more stable habitat.”

The Supplemental Kadison Response dated Sept. 25, 2009, emphasizes that sea turtle densities are relatively high in this foraging area and that three months of constant barge activity, using props and thrusters, will disturb and destroy significant seagrass beds: “The amount of seagrass to be impacted by the project is severely underestimated by the applicant as are the benthic organisms that exist in the depression.”

Kadison strongly recommends WICO conducts a thorough study of the bay, including quantative data on the abundance of seagrasses below 26 feet. This study, (with any additional agency input) would address the concerns raised by National Marine Fishery Service in its discussion of quantification of seagrass coverage at No. 3 of its e-mail dated July 10, 2009.

Please consider how much the props and thrusters would ruin this important food source, how difficult it is to successfully transplant seagrass, how long it will take to replenish, and where around St. Thomas all of the turtles affected are supposed to find food in the months or years ahead.

Formal, not informal, consultation with NOAA

This is a permit application involving several species protected under the Endangered Species Act. Even if the project were to go according to plan, with no accidents, the cumulative effects of three months of heavy barges with props and thrusters going deep inside Lindbergh Bay, constantly stirring up the water, will affect the staghorn coral, elkhorn coral and their critical habitat.

This project also will affect the green turtles and hawksbill turtles that live in Lindbergh Bay, as well as their food sources. If there are any accidental dumpings of dredge spoils, the situation would be that much worse, and accidents can be expected when the work is constant, pressured, 24 hours a day.

Please be protective of the aquatic resources of Lindbergh Bay, and conduct a formal consultation with NOAA, pursuant to your own guidelines. After all, it is the policy of the Corps to encourage the propagation of proposed and listed species and protect proposed and designated critical habitat: “14. Formal Consultation. In those cases where it is determined that listed species or critical habitat may be affected by an activity undertaken by the Corps, formal consultation under the ESA is required.”

Public Interest

Pursuant to 33 CFR 320.4, this project must be evaluated by U.S. Army Corps of Engineers to ensure that it would not be contrary to the public interest. Lindbergh Bay has the only beach in St. Thomas serviced by public transportation. There are three hotels on Lindbergh Bay, a restaurant and a children’s park. The businesses bring $30 million to the island per year and employ 100 Virgin Islanders. These are hard numbers, not speculative, like the assumption of how much megacruiseship passengers will spend downtown, when they have enticing well-stocked boutiques on board.

There has been an enormous outcry by the people of the Virgin Islands against this dumping. On this small island, even with tens of thousands of citizens working for either the local government or the cruise ship industry, still over 2,000 residents have signed petitions not to dump in Lindbergh Bay.

Several environmental and citizen groups have together filed appeals of the CZM decision. The dredging and dumping issue is often discussed on the radio and in all walks of life, throughout the territory. The newspapers have published dozens of articles, letters and photographs, almost all for the dredging and against the dumping. There have been several informational and fundraising events, and more are scheduled.

The citizens of the Virgin Islands were not all allowed to attend the CZM hearing. CZM was notified in advance of the large numbers of citizens planning to attend the meeting. Nevertheless, CZM refused to hold the hearing at a larger facility, despite the fact that it had done so in the past for other hearings. Thus, not all citizens could hear or be heard on this highly publicized, highly criticized permit application. The public has not yet been able to see the entire lab report, even though it has been subpoenaed.

Gov. John deJongh Jr. 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 …” Clearly we cannot depend upon our governor to protect our coral, despite the fact that he is a member of the U.S. Coral Reef Task Force.

The V.I. Legislature’s deputy chief legal counsel Tharpes advised, in detail, why the CZM issuance of the Coastal Zone Permit was inconsistent with the requirements of the CZM Act, and is therefore illegal. Nevertheless, the subcommittee of the VI Legislature ignored her legal advice and ratified the permit.

Therefore, with the local V.I. government strongly behind the dumping, DPNR is put into a conflict of interest. Should the permitting go forward, DPNR would be the local enforcement, and would have to act, at times, contrary to the very strong wishes of its employers.

There is too much that can go wrong, if the U.S. Army Corps of Engineers allows the dumping in Lindbergh Bay because U.S. Army Corps of Engineers undoubtedly would be granting the permit subject to many limitations, which would then have to be enforced strictly, and promptly.

It is clear that an enormous amount of pressure has been brought to push this permit forward, and it would be very difficult for a local agency, such as DPNR, to shut the project down, if necessary, for environmental reasons.

There is much public outcry in this matter, and for very cogent reasons. Lindbergh Bay has many important functions right now, growing recruits of elkhorn coral, providing lush seagrasses to green turtles, a nursery to thousands of juvenile queen conch. It is the home to staghorn and elkhorn coral, to Nassau grouper, and where a leatherback laid her nest. Finally, the bay is lined on both sides with the critical habitat of staghorn and elkhorn coral. The objective of the federal agencies is to get these projects done , if they can be done safely and appropriately. The dumping portion of the project cannot be done safely and appropriately. There are other alternatives, such as the St. Croix site, for WICO to utilize.

Conclusion

This permit should be denied. USACE recognizes Title 18, United States Code, Section 1001 as applying to statements made by applicants in permitting matters, and since WICO made several false statements or representations about material issues, its permit should be denied and WICO should be given appropriate sanctions.

This reasoning is twofold: first, to deal appropriately with actions already taken, and second, to preclude any further misrepresentations or negative impact on the environment. If applicant has been trying to cut corners, in its haste to get this project done, and is not being truthful at this juncture, it is illogical to expect an applicant to become more scrupulous in the future once it has gotten the green light.

If the U.S. Army Corps of Engineers decides to proceed regardless, please leave Lindbergh Bay alone. This bay serves an important function as a nurturing home to many endangered and threatened species, their food sources, and the critical habitat of staghorn and elkhorn coral. Please seriously investigate alternative sites, and recommend them, or have WICO apply for the waiver in Puerto Rico.

– Susan K. Wolterbeek is an attorney on St. Thomas.

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