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Stop the Coral World Dolphin Enclosures

September 29, 2014

 

Edgar W. Garcia

District Engineer, Antilles Permit Section

400 Fernandez Juncos Avenue

San Juan PR 00901

Edgar.W.Garcia@usace.army.mil

 

Re: Objection to St. Thomas VI Caged Dolphin Proposal SAJ-1976-89037

 

Dear District Engineer Garcia:

 

     The U.S. Army Corps of Engineers should deny Coral World’s application, for moral, societal and economic reasons, as detailed below, and as submitted by the many concerned citizens who have spoken out and written against the proposal.  From a legal standpoint, such permitting would be a taking of  Elkhorn and other corals, and thus a violation of the Endangered Species Act and President Clinton’s Executive Order 13089, which gives All Coral the same protection as Staghorn and Elkhorn Coral.

 

     Further, this summer, the EPA finally declared DPNR to be a high risk agency. (See EPA Letter of 5-23-14 and VI Daily News article dated 7-7-14).  DPNR has shown its many and comprehensive failures to monitor, protect and police our coastal waters. Without a competent enforcement agency to ensure compliance with the many laws, health and safety concerns, USACE itself would knowingly be in violation of many federal laws and federal agency Memorandums of Understanding if it granted this permit to Coral World.

 

 

DPNR HAS PROVEN, OVER THE YEARS,  ITS INABILITY TO ACCURATELY TEST VI COASTAL WATERS

 

     In order for USACE to determine whether the proposed permit would violate federal laws in regard to water quality, USACE must establish there is a presently accurate working system to test water quality, that DPNR enforces that system, and that the caged dolphin proposal will not be deleterious to the water quality for dolphins, humans and endangered species.

 

     DPNR conducts two kinds of water tests in the USVI, the weekly, far more superficial beach reports, and the in-depth testing of hundreds of locations, which must be reported every 2 years. In 2010, the EPA reviewed the in-depth water testing results by local DPNR for 3 years: 2007, 2008 and 2009.

 

     DPNR’s water tests taken during 2008 and 2009 were specifically and totally rejected by the EPA.   See the DPNR 2010 Water Quality Report excerpts,  i.e.

“Due to issues with internal data collection, which included malfunctioning equipment, USEPA evaluated DPNR Basic Water Quality Monitoring Program data for FY2008 and 2009. USEPA determined there could be noreliance on any DO, pH, turbidity and temperature data reported from the field.”

 

 

     DPNR’s unreliable or incorrect data was in areas specifically critical to Coral, an endangered species.  Although the EPA rejected DPNR’s water test results for 2008 and 2009, it kept the data from 2007.  Was the data collected correctly in 2007? Even so, using the 2007 data as if it were correct, the EPA cited 204 USVI beaches as already being “Impaired”. See the 2010 EPA Report at: http://greenervi.org/impaired-or-threatened-beacheswaterways/

 

     DPNR did not do any update, as required, in 2010, 2011 or 2012, despite all the documented hundreds of millions of gallons of raw sewage dumped by VI Waste Management in 2010-2011. See the 3-30-11Wastewater Discharges and the 4-11-11 letter to EPA Attorney Edouardo Gonzales.  We are still awaiting the information from the EPA to update the discharges from 2011 through the present.  See letter to G. Garrison and his reply.

 

     DPNR is required to test USVI coastal waters and post the report every 2 years.  Thus, since the EPA excluded the 2008 and 2009 test results, DPNR and the EPA should have immediately retested our waters in 2010, as I requested of Judith Enck in my letter of May 16, 2010, attached. After all, many hundreds of millions more gallons of raw sewage have been dumped into our coastal waters since 2007, and 204 of our beaches were already impaired then, and that was 7 years ago.

 

     In a meeting with me in August 2013, EPA Region 2 stated that the EPA would finally start collecting water quality data the following month, in September, 2013. Those tests, (taken 6 years after the data upon which EPA proclaimed there were  204 Impaired Beaches in the USVI), have still not been shared by the EPA with the public, the actual people who swim in those waters. Thus 7 years later, not 2, DPNR and the EPA have still not presented any new data on the current condition of our impaired beaches, or the in depth reports on our coastal waters. Please see letter to EPA G. Garrison and his reply.

 

     Further, according to the EPA’s 2014 DPNR=high risk agency report, EPA Region 2 was aware DPNR did not have a contract with the company that was collecting beach monitoring samples and had not paid the company for sampling work since July 2012. Region 2 provided documentation indicating that it had repeatedly contacted DPNR about the issue for a year, “with no results.”

 

     Thus, DPNR has not been taking accurate water samples for years, and those test results from September 2013 are still not being divulged to the public, let alone acted upon. DPNR’s own reports show that turbidity was the biggest problem, temperature readings were thrown out for years, and each of these factors alone has been proven to kill coral.

 

     How, logically, can USACE make any determinations in regard to the proposed impact on water quality, when the water quality of the US Virgin Islands is kept secret?

 

DPNR OFFICIALS HAVE REFUSED TO PROSECUTE TO PROTECT USVI COASTAL WATERS AND HAVE BEEN PROVEN CORRUPT AND USING DPNR EQUIPMENT TO VIOLATE FEDERAL CRIMINAL LAWS

 

     Many areas of USVI local government have been acting illegally, as documented by numerous OIG reports and FBI actions.  Despite multiple Court Orders, no one at DPNR (or the local EPA)  has stopped waste management from dumping hundreds of millions of gallons of raw, untreated sewage over the past 30 years.

 

     DPNR also has consistently refused to prosecute the criminals, resulting in continual malfeasance without punishment. From a practical and economic standpoint, if the criminals know DPNR will not prosecute, they will continue to pollute our coastal waters.  Instead of actively protecting our coastal waters, DPNR enforcement officials were actively committing their own federal crimes, and using DPNR equipment to commit those crimes.

 

     Since 2008, Local DPNR officials have been convicted on multiple counts of bribery, embezzlement and cocaine smuggling. Please see attached Dept. of Justice Memorandum and newspaper articles.

 

     Last year, DPNR Enforcement Director Tapia Plead Guilty to Cocaine Smuggling, and using DPNR equipment to further his crimes.

 

     According to the EPA website, VIWMA (with documented dumping of hundreds of millions of gallons of raw sewage) is only 1/3 of the problem. Thus,  private dumping, (hotels, corporations, etc.) are twice as bad.   Therefore, historically, DPNR is incapable of  monitoring, protecting and policing USVI coastal waters.

 

VIWMA HAS BEEN DUMPING HUNDREDS OF MILLIONS OF GALLONS OF RAW, UNTREATED SEWAGE INTO VI COASTAL WATERS FOR 30 YEARS

 

     Before determining whether the proposed caged dolphin areas may cause harm, for basic due diligence in regard to water quality in USVI coastal waters, USACE must review the filings and documentary evidence in VI Fed Dist. Ct. Case 1984-104, United States V. Government of the USVI.

 

     According to EPA Region 2 and its own documents, local VI Waste Management [VIWMA] has been dumping hundreds of millions of gallons of raw, untreated  sewage and chemicals into USVI coastal waters, per year, on and off,  for the past 30 years, since 1984.

 

     For example, see the Wastewater Discharges from 1-1-10 through 3-1-11 which we compiled from VIWMA non-compliance reports sent by the EPA, in addition to the 4-11-11 letter to EPA Attorney Edouardo Gonzales, as well as all non-compliance reports since 3-1-11.

 

     Even with mandatory reporting pursuant to the TPDES Permit and the Clean Water Act, there are blatant, enormous discrepancies between reality and the official Non-Compliance Reports VIWMA submits to DPNR and the EPA. For example, VIWMA recorded in official Non-Compliance Reports to the EPA that between January 16-March 16, 2010,  LBJ pump station was out of service for a total of 13.5 hours. Nevertheless, on May 11, 2011, VIWMA officials admitted in Federal District Court that LBJ Pump Station was actually pumping raw sewage directly into our coastal waters at 3.4 million gallons, per day, for 60 days, or 1440 HOURS, instead of the reported 13.5 hours.  Thus, in just one instance, out of  hundreds of others that were not verified, VIWMA reported less than 01% of the actual raw sewage dumped. We have repeatedly brought up these outrageous inconsistencies to the EPA, yet VIWMA still does not even put quantities on its non-compliance reports, and often keeps dumping over a million gallons per day.

 

     As May Adams Cornwall testified on May 11, 2011, much of the dumping could have been averted by purchasing, repairing and maintaining the necessary pumps. She openly blamed this on executive failure of VIWMA, of which she is the Chief Executive, and admitted VIWMA had not followed the Emergency Court Order of 3/10, even to purchase certain Court Ordered pumps.

 

     According to the EPA website, VIWMA (with documented dumping of hundreds of millions of gallons of raw sewage) is only 1/3 of the problem- private dumping, (hotels, corporations, etc.) are twice as bad.   Therefore, historically, DPNR is incapable of  monitoring, protecting and policing USVI coastal waters.

 

 

     In January, 2014, Coki Beach itself was closed to people for swimming and fishing due to pollution. Where would the dolphins be taken, if those waters are that polluted?  If DPNR cannot monitor the water correctly for humans, or prosecute criminals who dump sewage, who will protect the caged dolphins in their polluted water?

 

RAW SEWAGE IS HARMFUL TO THE MARINE ECOSYSTEM, AND IS PARTICULARLY HARMFUL TO CORAL

 

     In 2011, Federal District Judge Gomez ordered the EPA, DPNR, and VIWMA to stipulate that dumping raw, untreated sewage impaired the health of humans and coral. Perhaps USACE can obtain a copy of that Stipulation. Even the Consent Order of 24 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 reef-building corals at trapping and removing sediment from their surface. Staghorn and Elkhorn Coral are both threatened species, protected by the Endangered Species Act.

 

     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 …”

 

FAILING TO REGULATE VIWMA AND PRIVATE DUMPING, DPNR AND THE EPA ARE VIOLATING THE ENDANGERED SPECIES ACT

 

     The Endangered Species Act [ESA] establishes an interagency consultation process to assist federal agencies in complying with their Section 7(a)(2) duty to guard against jeopardy to listed species or destruction or adverse modification of critical habitat. Under Section 7(a)(2), federal agencies must consult with the Service to determine whether their actions will jeopardize listed species’ survival or adversely modify designated critical habitat, and if so, to identify ways to modify the action to avoid that result. 50 C.F.R. § 402.14 (2010).

 

     An agency must initiate consultation under Section 7 whenever its action “may affect” a listed species or critical habitat. 50 C.F.R. § 402.14(a).

 

     In the case at hand, there is the best evidence possible, because causation of harm to Coral is stipulated between the EPA, DPNR and VIWMA. Therefore, the parties have stipulated that the dumping of raw, untreated sewage into coastal waters is harmful to humans and Coral.  That Stipulation, coupled with VIWMA’s own non-compliance reports showing their continued dumping of raw sewage prove that VIWMA, DPNR and the EPA are knowingly, repeatedly in violation of the Endangered Species Act.

 

     Based upon the above facts, and until USVI coastal waters have a clean bill of health, we suggest that no licensing should be issued by USACE for any actions in USVI coastal waters. As a federal regulatory agency with notice as to these ongoing criminal activities, please will USACE report to NOAA pursuant to the MOU of the ESA.

 

     An agency is required to review its actions “at the earliest possible time” to determine whether the action may affected listed species or critical habitat. 50 C.F.R. § 402.14(a).

 

     The scope of agency actions subject to consultation are broadly defined to encompass “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies.” 50 C.F.R. § 402.02 (definition of “action”).

 

     In the case at hand, there is the best evidence possible, because causation of harm to Coral is stipulated between the EPA, DPNR and VIWMA. Therefore, the parties have stipulated that the dumping of raw, untreated sewage into coastal waters is harmful to humans and Coral.  That Stipulation, coupled with VIWMA’s own non-compliance reports showing their continued dumping of raw sewage prove that VIWMA, DPNR and the EPA are knowingly, repeatedly in violation of the Endangered Species Act.

 

PRESIDENT CLINTON’S EXECUTIVE ORDER 13089 MANDATES THAT ALL CORAL IS PROTECTED, NOT JUST STAGHORN AND ELKHORN CORAL

 

     Executive Order 13089 protects all Coral found in US waters, mirroring the Endangered Species Act in its provisions.

 

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.

 

     Despite the above Executive Order, the EPA is not protecting and enhancing USVI coral reef ecosystems, nor is the EPA ensuring that its actions will not degrade the condition of the USVI coral. To the contrary, the EPA is allowing the degradation to continue.

 

     As May Adams Cornwall testified on May 11, 2011, much of the dumping could have been averted by purchasing, repairing and maintaining the necessary pumps. She openly blamed this on executive failure of VIWMA, of which she is the Chief Executive, and admitted VIWMA had not followed the Emergency Court Order of 3/10, even to purchase certain Court Ordered pumps.

 

     Every single dumping of raw sewage is a violation of federal criminal and civil laws, including the Endangered Species Act and the Clean Water Act, yet no federal agency has taken charge, no one is being held responsible, or accountable, and the dumping continues, often on a daily or weekly basis. By law, the EPA has an absolute duty to report each of these federal violations to NOAA and must formulate a plan to stop the dumping and help our underwater community.

 

HUMANS SWIMMING AND SNORKELING HERE ARE SUFFERING FROM FROM STAPH INFECTIONS AND FLESH EATING BACTERIA

 

     In February, 2013, the EPA held a symposium at UVI in regard to its concern for Coral. Please ask the EPA for a copy of that transcript, because it was taped. At that meeting, many of us testified as to personal knowledge and the general local awareness of hundreds if not thousands of documented cases of  staph infections and even flesh eating bacteria from swimming in our coastal waters.  USVI doctors and hospital personnel see many of these cases every day.

 

     One of the people with a staph infection and flesh eating bacteria spoke eloquently to the conference, said that she swam every day in Brewer’s Bay, for exercise, and clearly got her infection from our coastal waters. Please see the attached photograph of her leg. We were told that any lists we compile as to illnesses are only anecdotal, yet when asked, Administrator Enck specifically refused to alert the CDC.

 

     Thus, there is a large amount of people getting staph infections and intestinal diseases in the USVI, yet the EPA will not coordinate with H&HS or the CDC to even look at opening an investigation. The CDC will not talk to us citizens- the EPA must request the CDC’s intervention, and Judith Enck refused to do so. Please see the attached photograph, and the CDC data sheet on Cholera in Haiti.

 

     We are very concerned we will get cholera, as well as a host of other diseases and infections. The cholera breakout in Haiti was caused by a leak in the bathrooms of a U.N. facility, resulting in a total of 534,647 cases, 287,656 hospitalizations, and 7,091 deaths (as of 5-4-2012). In the case of the US Virgin Islands, we do not just have a leak. VI Waste Management at times has been  pumping out over a million gallons a day. When multiple pump stations are down, those numbers escalate dramatically.

 

     Despite this track record, since 2010, Region 2 has only been urging VIWMA to act correctly, when it has not done so for 30 years and the dumping continues. We still do not have recycling, garbage is collected unsorted, in large smelly open bins, often with rats. [Plague is a possibility, too.]We have 2 unlined community dumps that leach onto the land here and also into our coastal waters and we have a large mass of “red mud” which is being blown around the land and waters of St. Croix.  Anyone at Region II will verify these facts, including Judith Enck and her attorneys.

 

     Further, as a minority constituency, pursuant to the  MEMORANDUM OF UNDERSTANDING ON ENVIRONMENTAL JUSTICE AND EXECUTIVE ORDER 12898, the USVI qualifies for the additional protection and action the federal government is required to take on our behalf. Please see attached MOU.

 

CONCLUSION

 

     For 4 years now, we at greenervi.org have continually requested that the EPA actively stop the dumping, prosecute all criminals and enter into formal consultations with NOAA.

 

     Judith Enck suggested I sue the EPA, which I finally did, bringing a Citizen’s Suit through a Motion for Joinder. Then the EPA strenuously objected to my Citizen’s Suit, tooth and nail and the parties reached “settlement” before I could join, which agreement was again immediately violated.

 

     Despite the mandatory consultation requirements under the Endangered Species Act, to date the EPA has refused to have any mandatory consultations with NOAA in regard to the continued dumping of raw, untreated sewage.  The EPA refuses to prosecute anyone under the ESA or CWA, or to instruct the US Attorney to do so.

 

     DPNR is designated by the EPA to be an “at risk” agency, and DPNR cannot be entrusted by USACE to protect, monitor or police VI coastal waters.

 

     There is a competent environmental engineering company which is licensed and ready to step in and take over VIWMA, to give us full recycling and close the unlined dumps, but the EPA refuses to act, except to have endless meetings.

 

     Based upon the above facts, and until USVI coastal waters have a clean bill of health, we suggest that no licensing should be issued by USACE for any actions in USVI coastal waters. As a federal regulatory agency with notice as to these ongoing criminal activities, please will USACE report to NOAA pursuant to the MOU of the ESA.

 

     We at greenervi.org are preparing a Citizen’s Suit against the EPA, DPNR, et al pursuant to the Endangered Species Act. We will be glad to supply copies of filings to your office. Further, we will be glad to speak with you at your convenience and will supply any additional documents you would like.

 

     Attached is my letter to Coastal Zone Management dated 12-20-12 specifically addressing moral, societal, practical and ethical grounds for denying this application by Coral World.  I will send all the attachments in batches.

 

Sincerely,

 

Susan K. 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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