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NOAA Notified of Illegal, Continuing Dumping of Raw Sewage

From: Thomas Bigford [mailto:Thomas.Bigford@noaa.gov]
Sent: Friday, April 30, 2010 4:04 PM
To: Susan Wolterbeek
Subject: Re: VIWMA dumping 72 million gallons or raw sewage over Long Reef, St. Croix

Thanks for your phone call and message, Susan.  I have relayed the information to others and will follow up with them later today and Monday.  I’ll get back to you asap.

Susan Wolterbeek wrote:

April 30, 2010

Mr. Thomas Bigford, Habitat Division (F/HC2)

National Marine Fisheries Service, NOAA

1315 East-West Highway, Rm 15317

Silver Spring, MD 20910

Dear Mr. Bigford:

I have been doing the preliminary research on various federal laws and approaches to the problem, and I think the best solution would be to file an amicus brief with the Federal District Court, in conjunction with NOAA, FWS, the Nature Conservancy and the Center for Biological Diversity, and in support of the EPA. Here are the basic facts:

There is a longstanding EPA consent decree based upon prior violations by VIWMA. VIWMA does not abide by the consent decree. VIWMA does not even do the minimum required publishing and reporting every day the fact that it is daily dumping 1.2 million gallons of raw sewage and people should stay out of the coastal waters, and fishermen should not catch fish there. This in itself is a gross negligence for failing to perform the most rudimentary of  health care measures. Further, we have a large tourist population  during the height of season, and they should have been warned as well as the Virgin Islanders.

Also, this discharge of 72 Million Gallons of raw sewage was dumped near protected wildlife refuges, and in coastal waters which is the home to staghorn and elkhorn coral and their habitat, all protected by the ESA as well as protected turtles, fish, and other species.

VIWMA is fiscally irresponsible, not collecting septage and other basic fees, not keeping all federally mandated records or even issuing an annual report for the past 4 years.

VIWMA has not maintained its equipment, or had a reasonable back-up system, resulting in VIWMA dumping 72 million gallons of raw sewage over Long Reef, St. Croix, over a two month period. VIWMA was told by the EPA to stop dumping but did not do so until it received a Court Order.

Federal District Court Judge Gomez issued specific orders on March 18, 2010. VIWMA then violated those orders as reported in a newspaper article.

Then, VIWMA again dumped raw sewage on April 27, 2010.

Clearly, VIWMA has no interest or intention of  following court orders. We cannot wait for VIWMA to dump any more raw sewage.

The Federal District Court has the ability to take extraordinary measures on behalf of the people of the Virgin Islands for human health reasons, for criminal taking of Endangered Species, for wholescale mismanagement of  the VIWMA. The Federal District Court may order the EPA to take over management of the VIWMA.

That needs to occur now. If the EPA takes over management of VIWMA, it can stop dumping, buy necessary equipment, say no to Alpine, and focus on a comprehensive waste management plan.

My rough research shows the following:

It is entirely appropriate to file an Amicus Brief , particularly when VIWMA has just violated Federal District Court Orders.

The ESA affects regulation under the Clean Water Act. 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). Moreover, EPA has been negotiating agreements with states that issue NPDES, thus it is also appropriate and helpful to the District Court Judge to get NOAA, FWS, The Nature Conservancy and the Center for Biological Diversity’s  point of view on all of this, while the case is currently before the Court.

ESA § 9 makes it unlawful for anyone to “take” a listed animal, and this includes significantly modifying its habitat.

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.

Thus, NOAA and the U.S. Attorney’s Office may chose to prosecute the Senior Staff, Board of Directors, and perhaps other agency personnel for thousands of criminal violations of the ESA.  All of this could have been avoided,  and now so much of our coral, wildlife preserves and ecosystem in general is at risk. Given what is going on with the oil leak in the Gulf of Mexico, and how that may devastate the Florida coral populations, that makes this case all the more unconscionable, since it should never have happened.

Pursuant to ESA Chapter 7, “Each federal agency shall . . . ensure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.”  The only way the EPA can ensure this is if it takes over VIWMA.

Do you think NOAA/NMFS would submit an Amicus Brief, either jointly with or separately from the aforementioned agencies? The Center for Biological Diversity is very interested, but they don’t have the manpower to prepare the Amicus Brief. I have been communicating with Peter Galvin, Chief, International Division, telephone: 707.986.2600   email: ‘PGalvin@biologicaldiversity.org

In regard to the Nature Conservancy, since they have 3 project areas of recolonization of Staghorn and Elkhorn Coral around St. Croix and 1 in St. Thomas, (through a NOAA grant) they may have all the data you need to make your criminal as well as civil action successful. The contact person there is:

Kemit-Amon Lewis, Coral Conservation Manager for The Nature Conservancy at (340) 718-5575 or via email klewis@tnc.org.

I look forward to hearing from you.

Sincerely yours,

Susan K. Wolterbeek

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