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Letter to EPA Administrator, Region 2, May 16th, 2010

 

From: Enck.Judith@epamail.epa.gov [mailto:Enck.Judith@epamail.epa.gov]
Sent: Monday, May 17, 2010 12:37 PM
To: Susan Wolterbeek
Subject: Re: Citizen’s Suit, Human health of Triathaloners, Endangered Species Act

susan: I am looking into the issue of sewage discharges on vi.

Judith Enck
Regional Administrator
U.S. Environmental Protection Agency
290 Broadway
New York, N.Y. 10007-1866
(212)  637-5000

                                                                                                                                                                                                                                                                                 

                                           Susan K. Wolterbeek, Esq.

                                           P.O. Box 306658

                                           St. Thomas, VI 00803-6658

                                           (340) 714-2233 susanremy@vipowernet.net

                                                                                            May 17, 2010

Judith Enck
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, Polio virus and 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

______________________________________________________________________

 

 

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.

 

Table 1 – Waterborne Pathogens, Associated Illnesses, and the Wastes They.re Found In 

 

Pathogenic Agent

Associated Illnesses

Wastes

Bacteria:    
Campylobacter jejuni Gastroenteritis/death from Guillain-Barré syndrome Human/animal feces 
E. coli (pathogenic or enterovirulent strains) Gastroenteritis/E. coli O157:H7, adults: death from thrombocytopenia; 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), Domestic sewage 
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 and domestic sewage
Vibrio cholera Cholera – death                                                            / shellfish, saltwater Yersinia spp. Acute gastroenteritis (including diarrhea, abdominal pain)/reactive arthritis Water, milk, mammalian alimentary canal Domestic sewage,
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-likeviruses Gastroenteritis Domestic sewage
Poliovirus Poliomyelitis Domestic sewage
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 Giardiasis, diarrhea, abdominal cramps/failure to thrive,severe hypothyroidism, lactose intolerance, chronic joint pain Human feces
Isospora belli and Isosporahominus Intestinal parasites, gastrointestinal infection Toxoplasma gondii Newborn syndrome, hearing and visual loss, mentalretardation, 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 s pp. 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 O157:H7, 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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