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Letter to the Army Corps – part 1

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.

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