[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
THE DISCHARGE EFFECTS OF THE WASHINGTON AQUEDUCT
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
October 30, 2001
__________
Serial No. 107-71
__________
Printed for the use of the Committee on Resources
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Joel Hefley, Colorado Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Robert A. Underwood, Guam
Richard W. Pombo, California Adam Smith, Washington
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
George Radanovich, California Ron Kind, Wisconsin Islands
Walter B. Jones, Jr., North Carolina Jay Inslee, Washington
Mac Thornberry, Texas Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Bob Schaffer, Colorado Rush D. Holt, New Jersey
Jim Gibbons, Nevada James P. McGovern, Massachusetts
Mark E. Souder, Indiana Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon Hilda L. Solis, California
Michael K. Simpson, Idaho Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado Betty McCollum, Minnesota
J.D. Hayworth, Arizona
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Allen D. Freemyer, Chief of Staff
Lisa Pittman, Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeff Petrich, Democrat Chief Counsel
------
SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS
GEORGE P. RADANOVICH, California, Chairman
DONNA M. CHRISTENSEN, Virgin Islands Ranking Democrat Member
Elton Gallegly, California Dale E. Kildee, Michigan
John J. Duncan, Jr., Tennessee Eni F.H. Faleomavaega, American Samoa
Joel Hefley, Colorado Frank Pallone, Jr., New Jersey
Wayne T. Gilchrest, Maryland Tom Udall, New Mexico
Walter B. Jones, Jr., North Carolina, Mark Udall, Colorado
Vice Chairman Rush D. Holt, New Jersey
Mac Thornberry, Texas James P. McGovern, Massachusetts
Chris Cannon, Utah Anibal Acevedo-Vila, Puerto Rico
Bob Schaffer, Colorado Hilda L. Solis, California
Jim Gibbons, Nevada Betty McCollum, Minnesota
Mark E. Souder, Indiana
Michael K. Simpson, Idaho
Thomas G. Tancredo, Colorado
C O N T E N T S
----------
Page
Hearing held on October 30, 2001................................. 1
Statement of Members:
Christensen, Hon. Donna M., a Delegate in Congress from the
Virgin Islands............................................. 5
Radanovich, Hon. George P., a Representative in Congress from
the State of California.................................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Fiala, Colonel Charles J., Jr., Commander and District
Engineer, Baltimore District, U.S. Army Corps of Engineers,
Baltimore, Maryland........................................ 17
Prepared statement of.................................... 19
Gleason, Patricia, Chief of the Maryland and District of
Columbia Watershed Branch, Water Protection Division, U.S.
Environmental Protection Agency, Region 3, Washington, D.C. 11
Prepared statement of.................................... 13
Gordon, Rob, Director, National Wilderness Institute,
Alexandria, Virginia....................................... 21
Prepared statement of.................................... 23
Hogarth, Dr. William T., Assistant Administrator for
Fisheries, National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, U.S. Department of
Commerce, Washington, D.C.................................. 8
Prepared statement of.................................... 9
Leisch, Gordon, Field Biologist, Formerly of the Department
of the Interior, Office of Environmental Policy, Arlington,
Virginia................................................... 24
Prepared statement of.................................... 26
Parsons, John, Associate Regional Director for Lands,
Resources, and Planning, National Capital Region, National
Park Service, U.S. Department of the Interior, Washington,
D.C........................................................ 6
Prepared statement of.................................... 7
Additional Materials:
Department of the Army, Letter submitted for the record...... 50
Environmental Protection Agency, Letter submitted for the
record..................................................... 60
OVERSIGHT HEARING ON THE DISCHARGE EFFECTS OF THE WASHINGTON AQUEDUCT
ON THE C&O NATIONAL HISTORIC PARK
----------
Tuesday, October 30, 2001
U.S. House of Representatives
Subcommittee on National Parks, Recreation, and Public Lands
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:14 a.m., in
Room 2322, Rayburn House Office Building, Hon. George
Radanovich [Chairman of the Subcommittee] presiding.
STATEMENT OF HON. GEORGE RADANOVICH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Radanovich. Good morning and welcome to the
Subcommittee on National Parks, Recreation and Public Lands
oversight hearing on the effects of Washington Aqueduct
discharge on the C&O Canal National Historic Park.
Thank you for making the right room. I know the hearing
rooms have changed about four different times, given the
anthrax scare, and I know you all have invented different ways
to get into the Rayburn House Office Building because most of
the entrances are not open and the tunnels are closed. So I
want to thank you all very much for being here.
The Subcommittee on National Parks, Recreation and Public
Lands is meeting today on the effects of Washington Aqueduct
discharge on the C&O Canal National Historic Park. I would like
to say from the start that the purpose of this oversight
hearing is not an attempt to alter the operation of the
Washington Aqueduct to supply drinking water to the residents
of the District of Columbia, Arlington County, or the City of
Falls Church, Virginia, along with a number of installations
throughout the Metro area. This is especially significant in
light of the events surrounding September 11.
Rather, the purpose of this important hearing is to discuss
equal application of the law, specifically, the application of
the National Park Service Organic Act, the Endangered Species
Act, and the Clean Water Act. The Subcommittee would like to
understand how the Washington Aqueduct is permitted to annually
discharge over 200,000 tons of chemically treated sediment or,
in simpler terms, smelly polluting sludge, into the C&O Canal
National Historic Park and the Potomac River, which is a
Heritage River proclaimed in 1998 by former President Clinton.
I want to add that the discharge of this polluting sediment
is not a recent event. The Washington Aqueduct operation has
been continuously dumping chemicals and sediments into the C&O
Canal and the Potomac River for decades with the knowledge and
the blessing of the Park Service, the EPA, and other agencies.
In this hearing the Subcommittee will seek to examine the
following. Why has the National Park Service allowed the U.S.
Army Corps of Engineers to continuously discharge sludge and
other chemically treated water into waters within the C&O Canal
National Historic Park? I ask this question because the
National Park Service Organic Act and the Management Policies
Act of 2001 clearly mandate that above all else, the Park
Service is to protect and preserve unimpaired the resources and
values of the park for the enjoyment of the people. Allowing
200,000 tons of sludge to be dumped into the C&O and the
abutting Potomac River is hardly protecting park resources,
especially when one of them, the shortnose sturgeon, is on the
endangered species list and appears to be a spawning ground for
that very same animal.
What is the relationship between the Park Service and the
agency that operates the Washington Aqueduct, the U.S. Army
Corps of Engineers, and the Environmental Protection Agency,
the agency that continues to approve and permit the sludge to
be discharged from the water treatment plant into local
waterways? I ask this question because it is my understanding
that the 1989 U.S. Army Corps permit issued for the continued
operation of the aqueduct conditioned the construction of
additional water basins at the Dalecarlia plant on developing a
sludge treatment facility. Now, 11 years later, the treatment
facility has not been constructed nor even planned. However,
other water treatment facilities across the country, having far
fewer financial resources, have been able to move forward with
such modernizations. Why hasn't this one and why does the EPA
continue to permit the dumping when it may be affecting an
endangered species?
Question number three. What steps has the National Park
Service taken to eliminate the detrimental effects from the
plant's discharge that has and continues to enter the park's
waterways, creating a foul odor, unsightly color to the water,
and is lethal to aquatic life? I ask this question knowing that
a National Capitol Region Park Police officer has filed
numerous reports on the discharges, only to see them ignored.
In fact, the Committee staff just visited the C&O Canal
National Park last Friday and experienced a strong odor of
chlorine. Clearly the chemical discharges continue to impact
the resources. Why is the Park Service doing nothing about
this?
Question four. What steps under the Endangered Species Act,
specifically consultations mandated by Section 7, has the
National Marine Fisheries Service taken to protect the
endangered shortnose sturgeon and its habitat in the Potomac
River from the continuous discharge of sludge from the water
treatment plant?
And lastly, why does the Washington Aqueduct appear to
receive unusual favorable treatment and support from a number
of Federal agencies that would otherwise be fighting to be in
front of the line to shut down a similar water treatment plant
anywhere else in America where sludge has been discharged not
only into a heritage river but also into a national park
visited by over 2 million people annually?
I would like to say that as a member who represents
Yosemite National Park, I have seen first-hand how quickly your
agencies move to shut down a facility when it discharges
polluting waters into a national park, as did the EPA when the
Wawona waste water treatment plant discharged into Yosemite
National Park. I find it very troubling to understand why your
agencies have stood by for so long and allowed discharge from
the aqueduct into the C&O Canal National Historic Park while in
other instances have sought immediate shutdowns.
And finally, I cannot help but be reminded of the
incomprehensible situation in Klamath Falls, Oregon. As all of
you know, earlier this year the Department of the Interior
completely cut off water from hundreds of farmers and thus
their livelihood--many of them, if not all, are being forced
into bankruptcies--so that the habitat of an endangered sucker
fish could be preserved--the habitat. There was no notice that
the fish was present; it was just the habitat, very different
from the situation here where we know there is an endangered
species and the dumping still occurs. Yet another example of
where the Federal Government did not hesitate to take action to
protect the habitat of an endangered fish.
I think we ought to recognize that the new administration
has inherited the indifference of previous administrations on
this matter and it is my hope that a proactive decision will be
made to remedy this problem as soon as possible, rather than
continue the head-in-the-sand approach.
I hope to have these and other questions answered today and
I look forward to the testimony of the witnesses and I
appreciate the fact that you are here.
[The prepared statement of Mr. Radanovich follows:]
Statement of The Honorable George Radanovich, a Representative in
Congress from the State of California
The Subcommittee on National Parks, Recreation, and Public Lands
will come to order. Good afternoon everyone. Today, the Subcommittee
will examine the effects of the discharge from the Washington Aqueduct
on the Chesapeake &Ohio Canal National Historic Park and into the
Potomac River.
I would like to say from the start, the purpose of this oversight
hearing is not an attempt to alter the operation of the Washington
Aqueduct to supply drinking water to the residents of the District of
Columbia, Arlington County, the City of Falls Church, Virginia, along
with a number of installations throughout the Metro area. This is
especially significant in light of the events surrounding September
11th.
Rather, the purpose of this important hearing is to discuss equal
application of the law, specifically the application of the National
Park Service Organic Act, the Endangered Species Act, and the Clean
Water Act. The Subcommittee would like to understand how the Washington
Aqueduct is permitted to annually discharge over 200,000 tons of
chemically treated sediment, or in simpler terms, smelly polluting
sludge, into the C&O Canal National Historic Park and the Potomac
River, which was proclaimed a Heritage River in 1998 by former
President Clinton. I want to add that the discharge of this polluting
sediment is not a recent event. The Washington Aqueduct operation has
been continuously dumping chemicals and sediments into the C&O Canal
and the Potomac River for decades with the knowledge and blessing of
the Park Service, the EPA, and other agencies.
In this hearing the Subcommittee seeks to examine the following:
1) LWhy has the National Park Service allowed the U.S. Army Corps
of Engineers to continually discharge sludge and other chemically
treated water into waters within the C&O Canal National Historic Park?
I ask this question because the National Park Service Organic Act and
the Management Policies of 2001 clearly mandate that, above all else,
the Park Service is to protect and preserve unimpaired the resources
and values of the park for the enjoyment of the people. Allowing
200,000 tons of sludge to be dumped into the C&O and abutting Potomac
River hardly is protecting park resources, especially when one of them,
the shortnose sturgeon, is on the endangered species list.
2) LWhat is the relationship between the Park Service and the
agency that operates the Washington Aqueduct, the U.S. Army Corps of
Engineers, and the Environmental Protection Agency, the agency that
continues to approve and permit the sludge to be discharged from the
water treatment plant into local waterways? I ask this question because
it is my understanding that the 1989 U.S. Army Corps permit issued for
the continued operation of the Aqueduct conditioned the construction of
additional water basins at the Dalecarlia plant on developing a sludge
treatment facility. Now, eleven years later, the treatment facility has
not been constructed nor even planned. However, other water treatment
facilities across the country, having far fewer financial resources,
have been able to move forward with such modernizations. Why hasn't
this one and why does the EPA continue to permit the dumping when it
may be effecting an endangered species?
3) LWhat steps has the National Park Service taken to eliminate the
detrimental effects from the plant's discharge that has, and continues
to enter the park's waterways creating a foul odor, unsightly color to
the water, and is lethal to aquatic life? I ask this question knowing
that a National Capital Region Park Police officer has filed numerous
reports on the discharges only to see them ignored. In fact, Committee
staff just visited the C&O Canal National Park last Friday and
experienced a strong odor of chlorine. Clearly, the chemical discharges
continue to impact park resources. Why is the Park Service doing
nothing about this?
4) LWhat steps under the Endangered Species Act, specifically
consultations mandated by Section 7, has the National Marine Fisheries
Service taken to protect the endangered shortnose sturgeon and its
habitat in the Potomac River from the continuous discharge of sludge
from the water treatment plant?
5) LAnd lastly, why does the Washington Aqueduct appear to receive
unusual favorable treatment and support from a number of Federal
agencies that would otherwise be fighting to be in front of the line to
shut down a similar water treatment plants anywhere else in America
where sludge was being discharged into not only a heritage river, but
also into a national park visited by over 2 million people annually?
I would like to say as the Member who represents Yosemite National
Park, I have seen first hand how quickly your agencies can move to shut
down a facility when it discharges polluting waters into a national
park as did the EPA when the Wawona waste water treatment plant
discharged into Yosemite National Park. I find it very troubling to
understand why your agencies have stood by for so long and allowed
discharge from the Aqueduct into the C&O Canal National Historic Park
while in other instances have sought immediate shut-downs.
Finally, I cannot help but be reminded of the incomprehensible
situation in Klamath Falls, Oregon. As all of you know, earlier this
year the Department of Interior completely cut off all water from
hundreds of farmers--and thus their livelihood--so that the habitat of
the endangered sucker fish could be preserved. Yet another example
where the Federal Government did not hesitate to take action to protect
the habitat of an endangered fish.
I think we ought to recognize that the new Administration has
inherited the indifference of previous Administrations on this matter.
It is my hope that a proactive decision will be made to remedy this
problem as soon as possible, rather than to continue the head-in-the-
sand approach.
I hope to have these and other questions answered today, and I look
forward to the testimony of all of our witnesses. I now turn to the
Ranking Member for her opening statement.
______
Mr. Radanovich. And I now turn to my Ranking Member, Ms.
Christensen, for her opening statement.
STATEMENT OF HON. DONNA M. CHRISTIAN-CHRISTENSEN, A DELEGATE IN
CONGRESS FROM THE VIRGIN ISLANDS
Mrs. Christensen. Good morning. Mr. Chairman, thank you for
continuing the business of our Committee. It is good to know
that we are still working, especially since I do have a hearing
coming up later on this week that is of great interest to my
constituents and some of our other colleagues, so I want to
commend you and the staff for keeping the Committee working.
As we understand it, the purpose of this oversight hearing
is to examine the effects of the discharge of sediment and
pollutants from the Washington Aqueduct on the C&O Canal
National Historic Park and the habitat and population of the
endangered shortnose sturgeon. We certainly share concern for
both the park and the sturgeon and hope that today's hearing
will provide the Committee information that will be useful in
addressing any problems that may exist. But while we share some
of the concerns you expressed, we do have some questions
regarding the issues raised by this hearing.
It is our understanding that the aqueduct is operated by
the Army Corps of Engineers, an agency over which this
Subcommittee has no jurisdiction. In fact, of the agencies
invited to testify today, only the Park Service falls within
the purview of this Subcommittee and despite the impact on the
park of the operations of the canal, it is unclear whether the
National Park Service has any authority over the operation of
the aqueduct. In addition, whatever steps may need to be taken
to protect this endangered species are also outside of the
Subcommittee's jurisdiction.
There may well be changes that need to be made in the
manner in which this aqueduct is operated. Unfortunately, were
legislation introduced to make those changes it also seems
unlikely that it would be referred to this Subcommittee.
However, we have an outstanding array of witnesses. I would
like to welcome them this morning and hope that the information
they provide will prove valuable and I look forward to hearing
their testimony.
Mr. Radanovich. Thank you very much.
Any other opening statements from any other members?
With that, we will proceed with the hearing. As you know,
there is one panel today and many folks on that panel. On panel
one I would like to again welcome Mr. John Parsons, who is the
Associate Regional Director of Lands, Resources and Planning
for the National Capitol Region of the Park Service, U.S.
Department of the Interior.
Also with us--and welcome, Mr. Parsons--Mr. William
Hogarth, who is the Assistant Administrator for Fisheries,
National Marine Fisheries, National Oceanic and Atmospheric
Administration, U.S. Department of Commerce. Welcome.
Also, Ms. Patricia Gleason, Chief of the Maryland and
District of Columbia Watershed Branch of the United States
Environmental Protection Agency. I would like to welcome you
and thank you for being here.
Colonel Charles Fiala, who is the Commander and District
Engineer of the Baltimore District for the Army Corps of
Engineers. Welcome again, Col. Fiala.
Mr. Rob Gordon is the Director of the National Wilderness
Institute in Alexandria, Virginia and Mr. Gordon Leisch is a
Field Biologist, formerly of the Department of the Interior,
Office of Environmental Policy. Welcome to you, as well.
What I would like to do is allow everybody to make their
opening statement. Once we get through we are just going to
open it all up for questions.
So Mr. Parsons, if you would like to begin? And I suppose
we will do the clocks, although I want to make sure you get all
your information out. If we have to take up information and
follow-up questions, we will do it that way. So if you would be
mindful of the clocks, that would be great. You have 5 minutes
and begin if you would like.
STATEMENT OF JOHN PARSONS, ASSOCIATE REGIONAL DIRECTOR, LANDS,
RESOURCES, AND PLANNING, NATIONAL CAPITAL REGION, NATIONAL PARK
SERVICE, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.
Mr. Parsons. Thank you, Mr. Chairman. I believe you have
copies of my testimony and in the interest of time I will just
summarize that.
I thought a bit of history about the C&O Canal might be in
order this morning. The C&O Canal construction began in 1828.
This section of the river--that is, the first 23 miles--was
opened to navigation in 1831. It then continued on to
Cumberland and did not get there until 1850, but the section we
are talking about was operational long before the Washington
Aqueduct came into existence in 1864.
We have been able to uncover no records that indicate
whether rights-of-way or permits were issued by the Canal
Company in the period of 1860. We will continue that search but
it is a very laborious process, frankly.
I should point out that the Canal Company did not own all
the land in question here. They bought a right-of-way for the
canal. Between the canal and the river was owned privately at
that time. It did not come into public ownership until the
1940's and '50's and was acquired by the National Capital
Planning Commission pursuant to Capper-Crampton Act of 1929 to
protect the shore lines of the Potomac.
As we understand it, there are seven outfalls that exist in
Montgomery County and the District of Columbia. Some discharge
raw river water before it is even treated at Dalecarlia and the
others are discharged downstream from that point.
The canal park was established in 1971 and a proviso in
that was to allow all existing rights-of-way and permits to
remain in place. That is, there was no requirement by the
National Park Service to issue new permits or new rights-of-way
for pipes and discharges that occurred under the canal. I
should point out that none of these pipelines go into the
canal; rather, they go beneath it in culverts or pipes and
discharge into the Potomac.
As I am sure you know, the National Park Service has no
requirement or jurisdiction over the waters of the Potomac
River. Others here on the panel with me have that
responsibility and are working on permits in that regard.
That, in summary, concludes my testimony and I would be
happy to answer any questions as we move along.
[The prepared statement of Mr. Parsons follows:]
Statement of John Parsons, Associate Regional Director for Lands,
Resources, and Planning, National Capital Region, National Park
Service, U.S. Department of the Interior
Mr. Chairman, thank you for the opportunity to appear before your
committee to discuss the impacts of discharges from the Washington
Aqueduct on the Chesapeake and Ohio (C&O) Canal National Historical
Park and on the habitat and population of the endangered shortnose
sturgeon. Our comments will address the role of the C&O Canal National
Historical Park in this matter.
The U.S. Army Corps of Engineers (Corps) owns and operates the
Washington Aqueduct, which provides drinking water for more than one
million people in the metropolitan Washington area. Its history dates
back to 1798 when, with the capital city under construction, George
Washington suggested that ``the water of the Potomac may, and will be
brought from Great Falls into the Federal City.'' In 1852, Congress
commissioned a study of the water supply and, by 1864, the 12-mile
aqueduct began carrying water to the Georgetown Reservoir. The primary
water intakes for the aqueduct are located behind a low dam in the
Potomac River at Great Falls. The river water runs in an underground
pipe for most of its path to the Dalecarlia and Georgetown Reservoirs,
which are used by the Corps to filter and treat water for public
consumption.
The operation of the Washington Aqueduct has a long history that
predates the establishment of the C&O Canal National Historical Park.
Below, we discuss some of the facts about some of the outfalls known to
the National Park Service at this time. Three outfalls are in
Montgomery County, Maryland. These are permitted by the State of
Maryland and provide backflow release that may be used by the Corps
during facility maintenance. These outfalls are infrequently used and
release raw, untreated river water at points that are within the C&O
Canal National Historical Park.
A fourth outfall in Maryland is located near a pump station on
Little Falls Branch, a few hundred feet upstream of the Clara Barton
Parkway and the C&O Canal National Historical Park. The discharge flows
into a natural stream that passes beneath the canal in a culvert. The
discharge is permitted by the State of Maryland. Raw river water is
discharged at this location during maintenance. On occasion, treated
water is discharged here as well. The Corps has facilities to
dechlorinate treated water prior to discharge into Little Falls Branch.
In September 2001, as part of a cleanup effort from an August
storm, a National Park Service contractor tested the soil from the
Little Falls Branch box culvert to determine the potential presence of
hazardous or toxic materials in the sediment of the culvert under the
Canal. The test was undertaken with applicable US EPA SW-846 methods
for aluminum, Polychlorinated Biphenyls (PCBs), and Toxic
Characteristic Leaching Procedure for herbicides, certain metals,
pesticides, volatile organics, and base neutrals/acid extractables. The
testing did not detect any of the parameters tested for, at or near the
respective methods' Limits of Quantitation. Aluminum and barium were
identified, but at concentrations significantly lower than the Federal
regulatory thresholds. Based on this test, the contractor firm
indicated that the material from the box culvert does not appear to
exhibit hazardous characteristics.
Stream sedimentation resulting from discharge to Little Falls
Branch does not appear to be a problem within the park. The topography
of the area consists of a deep gorge with many rock ledges, and heavy
runoff from natural as well as discharge events have scoured the stream
bottom of sedimentation. Thus, accumulations of discharged sediments,
if any, disburse easily into the stream and do not appear to
significantly affect park resources.
Three outfall discharges are piped across the park in the District
of Columbia. These outfalls discharge water, sediment and aluminum
sulfate (alum) from the settling basins at the Georgetown and
Dalecarlia Reservoirs. One pipe discharges directly into the Potomac
River, and the other two discharge approximately 75-100 feet into a
trench located on park land. This trench drains into the Potomac. The
U.S. Environmental Protection Agency (EPA) is the permitting agency for
discharges that occur in the District of Columbia, and we understand
that it is currently is in the process of reissuing permits for these
three outfalls.
The U.S. Park Police is investigating whether any discharge from
the Corps facility has either substantially impaired park resources or
violated Federal or District of Columbia law. This ongoing
investigation was undertaken based on citizen complaints about odor and
floating material.
The C&O Canal National Historical Park presently does not issue any
permits to the Corps for discharging on or under Federal property
within the park boundary. Public Law 91- 664'the 1971 law that
established the C&O Canal as a national historical park provided for
utility rights-of-way. Section 5(a) of that law states: ``The enactment
of this Act shall not affect adversely any valid rights heretofore
existing, or any valid permits heretofore issued, within or relating to
areas authorized for inclusion in the park.'' The Washington Aqueduct
discharge lines were in place when the park was established. As we
understand it, the Corps has employed such discharge practices since at
least 1927. These discharges may predate establishment of the park and
even the 1938 transfer of the land to the Federal Government by the
Baltimore and Ohio Railroad.
The National Park Service does not have jurisdiction over the
waters of the Potomac River, although it does have jurisdiction over
the river bed in the District of Columbia. Responsibility for managing
Potomac River water quality lies with the EPA, the City of Washington,
D.C., and the Maryland Department of the Environment. However, water
quality is a major concern of the National Park Service. The National
Park Service cooperates with the responsible agencies to enhance
protection of the river's water quality and to protect its aquatic
resources.
Mr. Chairman, that concludes my prepared remarks. I would be
pleased to answer any questions you or other committee members might
have.
______
Mr. Radanovich. Thank you.
Dr. Hogarth.
STATEMENT OF DR. WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR
FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL
OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF
COMMERCE, WASHINGTON, D.C.
Dr. Hogarth. Good morning, Mr. Chairman and members of the
Subcommittee. Thank you for the opportunity to testify today on
the status of the shortnose sturgeon in the Potomac River and
the potential effects of the discharge from the Washington
Aqueduct on its population and habitat.
The shortnose sturgeon is anadromous, which means that it
lives in the rivers and near-shore marine waters and migrates
to fresh waters to spawn. The shortnose sturgeon was listed as
endangered under the Endangered Species Preservation Act on
March 11, 1967 and subsequently listed under the Endangered
Species Act of 1973.
National Marine Fisheries Service (NMFS) has the sole
responsibility for protecting the shortnose sturgeon under the
ESA. The Chesapeake Bay population segment includes any
shortnose sturgeon that inhabits rivers that flow into the bay,
including the Potomac River. There is no population estimate
available for this population segment.
Prior to 1996 there was limited data on the presence of
shortnose sturgeon in the Potomac. Between 1996 and 2000, four
shortnose sturgeon were captured in the upper and middle tidal
Potomac River during a U.S. Fish and Wildlife Service reward
program for Atlantic sturgeon. These sturgeon were captured in
pound nets in the Potomac River between 55 and 123 miles
downstream of the Washington Aqueduct discharge site. As of
April 2001, an additional 42 shortnose sturgeon were captured
via the reward program in other areas of the Chesapeake Bay but
none in the Potomac River.
While the evidence does not conclusively demonstrate that
shortnose sturgeon are present in any area that could be
adversely affected by the discharge, there is sufficient
evidence to show that it is at least a possibility. Since the
standard for determining whether ESA consultation is necessary
is whether an agency's action may affect a listed species, NMFS
believes it is in the best interest of the species to consider
the evidence showing that shortnose sturgeon are present in the
Potomac River basin and may be present in the action area.
In addition, while we also have not documented the evidence
of shortnose sturgeon spawning in the Potomac River, the
habitat in the upper tidal Potomac River at Little Falls is
consistent with the preferred shortnose sturgeon habitat in
other river systems.
While concerns about the effect of Washington Aqueduct's
discharge on water quality, fish, and other aquatic life
existed prior to 1996, the impacts to shortnose sturgeon
specifically were not considered. The capture of shortnose
sturgeon in 1996 during the Fish and Wildlife reward program
represented new scientific evidence that had to be considered
in ESA Section 7 consultations.
Therefore, in 1998 NMFS worked with the U.S. Environmental
Protection Agency and other Federal and state agencies to
develop measures that would minimize the impacts of the
sediment discharges to spawning, anadromous and resident fish
in the short term. Specific recommendations were made for the
operation of the Washington Aqueduct to minimize the adverse
effects of sediment discharges on the spawning activities of
anadromous fish and their habitat. Currently EPA and NMFS are
in informal consultations regarding the effects of the
Washington Aqueduct.
The Army Corps of Engineers, operator of the Washington
Aqueduct, funded a 3-year water quality study to assess the
discharge and its effects. We understand a final report of this
study has been issued. We have not yet received the final
document. EPA will use the discharge study results and other
relevant data to develop a biological assessment of the
potential effects of the Washington Aqueduct on shortnose
sturgeon. Once we receive this evaluation we will determine
whether the proposed Federal action is likely to adversely
affect shortnose sturgeon and other listed species. If so,
formal consultation will be necessary and NMFS will have to
prepare a biological opinion.
To conclude, I look forward to working closely with
Congress and the agencies for the protection of this species.
Thank you for the opportunity to provide this testimony. And
Mr. Chairman, due to a commitment at CEQ, I have to leave
around 11:30, if that is no problem.
[The prepared statement of Dr. Hogarth follows:]
Statement of William T. Hogarth, Ph.D., Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
Good morning, Mr. Chairman and members of the Subcommittee. Thank
you for the opportunity to testify today on the status of shortnose
sturgeon in the Potomac River, and the effects of the discharge of
sediment and pollutants from the Washington Aqueduct on its population
and habitat.
Background
The shortnose sturgeon is anadromous, which means that it lives in
slow moving river waters or nearshore marine waters, but migrates
periodically to fresher water to spawn. The shortnose sturgeon was
listed as endangered under the Endangered Species Preservation Act on
March 11, 1967, and subsequently listed under the Endangered Species
Act (ESA) of 1973. NMFS has sole jurisdiction for protecting shortnose
sturgeon under the ESA. The Chesapeake Bay population segment includes
any shortnose sturgeon that inhabits rivers that flow into the Bay,
including the Potomac River. There is no population estimate available
for this population segment.
Occurrence in Potomac River
Prior to 1996, the most recent documented evidence of shortnose
sturgeon in the Potomac was from 1899, and the best available
information suggested that the species was extirpated from the Potomac
River. Between 1996 and 2000, four shortnose sturgeon were captured in
the lower and middle tidal Potomac River during a U.S. Fish and
Wildlife Service (USFWS) reward program for Atlantic sturgeon. These
shortnose sturgeon were captured in pound nets in the Potomac River,
between 55 and 123 miles downstream of the Washington Aqueduct
discharge site near Little Falls. As of April 2001, an additional 42
shortnose sturgeon were captured via the reward program in other areas
of the Chesapeake Bay, but not near the Potomac River.
In addition to the reward program for Atlantic sturgeon, the USFWS
conducted two sampling studies between 1998 and 2000 in the Maryland
waters of the Chesapeake Bay watershed to determine the occurrence of
shortnose and Atlantic sturgeon in areas of proposed dredge-fill
operations. One of these studies was a Potomac River sampling study for
a Section 7 consultation on the U.S. Army Corps of Engineers' Potomac
River Federal Navigation Project. Specific concerns about this project
included the potential effects of proposed open water disposal of
dredged material in the lower Potomac River on shortnose sturgeon. This
study included a total of 4,590 fishing hours conducted at 5 sites in
the middle Potomac River. These sites ranged from approximately 30 to
74 miles downstream of the Washington Aqueduct discharge site. During
this study, no shortnose sturgeon were captured at any of the 5 sites.
As part of the Potomac River sampling study, at NMFS'' request, the
USFWS also conducted an additional 77 hours of sampling at two other
areas in the upper tidal Potomac River. This area, in the vicinity of
Little Falls, Virginia, is near the best potential spawning habitat for
shortnose sturgeon and the Aqueduct discharge site. No shortnose
sturgeon were captured during 1998 and 1999 spring sampling in the
vicinity of Little Falls.
Taken altogether, the evidence does not conclusively demonstrate
that shortnose sturgeon are present in any area that conceivably could
be adversely affected by the discharges. On the other hand, there is
sufficient evidence to show that it is at least a possibility. Since
the standard for determining whether ESA consultation is necessary is
whether an agency's action ``may affect'' a listed species, NMFS
believes that it is in the best interest of the species to consider the
evidence as showing that shortnose sturgeon are present in the Potomac
River basin, and may be present in the action area. This is based on
the documentation of shortnose sturgeon in the lower and middle tidal
reaches of the Potomac River as well as the suitable habitat in this
river system. Because sampling for shortnose sturgeon has been limited
in the upper tidal reaches, NMFS does not have sufficient evidence to
conclusively state that shortnose sturgeon are present or absent in
this area. While we have no documented evidence of shortnose sturgeon
spawning in the Potomac River, the habitat in the upper tidal Potomac
River at Little Falls is consistent with the preferred shortnose
sturgeon spawning habitat in other river systems.
Interagency Cooperation
In 1998, NMFS worked with the U.S. Environmental Protection Agency
(EPA) and other Federal and State agencies to develop measures that
would minimize the impacts of the sediment discharges to spawning
anadromous and resident fish in the short term. The agencies reviewed
scientific literature and provided specific recommendations for the
operation of the Washington Aqueduct to minimize the adverse effects of
sediment discharges on the spawning activities of anadromous fish and
their habitat.
Washington Aqueduct Section 7 Consultation History
While concerns about the effect of the Washington Aqueduct's
discharge on water quality, fish, and other aquatic life existed prior
to 1996, the impacts to shortnose sturgeon specifically were not
considered. The capture of shortnose sturgeon in 1996 during the USFWS
reward program represented new scientific information that had to be
considered in ESA section 7 consultations.
EPA and NMFS are in informal consultation regarding the effects of
the Washington Aqueduct. This is based on the recent documentation of
shortnose sturgeon in the Chesapeake Bay and the Potomac River, the
possibility of the Little Falls area as a spawning site, and our
inability at this time to conclusively state whether a spawning
population of shortnose sturgeon is present or absent in this area.
The Army Corps of Engineers, operator of the Washington Aqueduct,
funded a three-year water quality study to assess the discharge and its
effects. We understand that a final report of this study has been
issued but we have not yet received the final document. EPA will use
the discharge study results and other relevant data to develop a
biological assessment on the potential impacts of the Washington
Aqueduct on shortnose sturgeon. Once NMFS receives this evaluation,
NMFS will determine whether the proposed Federal action is likely to
adversely affect shortnose sturgeon and other listed species. If so,
formal consultation will be necessary and NMFS will prepare a
biological opinion.
To conclude, I look forward to working closely with Congress and
other agencies for the protection of this species. Thank you for the
opportunity to provide this testimony.
______
Mr. Radanovich. We will see what we can do.
Dr. Hogarth. Thank you.
Mr. Radanovich. Ms. Gleason, welcome.
STATEMENT OF PATRICIA GLEASON, CHIEF OF THE MARYLAND AND
DISTRICT OF COLUMBIA WATERSHED BRANCH, WATER PROTECTION
DIVISION, U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION 3,
WASHINGTON, D.C.
Ms. Gleason. Good morning, Mr. Chairman and members of the
Committee. My name is Patricia Gleason and I am EPA branch
chief in charge of the National Pollutant Discharge Elimination
System or NPDES permitting in the District of Columbia. Thank
you for your invitation to testify about the Washington
Aqueduct.
EPA issues NPDES permits in the District of Columbia. EPA
is also responsible for the regulation of drinking water. We
work to ensure that the Washington Aqueduct complies with all
applicable drinking water regulations and all water discharge
permit conditions.
Finally, the Endangered Species Act requires the EPA to
ensure actions are not likely to jeopardize the continued
existence of Federally listed endangered or threatened species
or adversely modify or destroy their critical habitat.
Additional information about the typical NPDES permitting
process is included in my written testimony but in the interest
of time I would like to turn now to the specific permitting
process for the Washington Aqueduct.
In April 1989, EPA reissued NPDES permit number DC-10 to
the Corps of Engineers for the Washington Aqueduct facility.
This permit allows for the discharge to the Potomac River of
residual solids from cleaning out sedimentation basins.
Discharges are allowed only during high flow conditions. This
permit had an expiration date of May 1994. The Corps applied
for a new permit before the expiration date and by Federal law
any permittee who timely applies to renew a permit is entitled
to continue operating under that permit until a new one is
issued. The permit required the Corps to study the potential
toxicity of the discharge. That study was completed in February
1993, concluding that there were no apparent water quality
effects from the release of the discharges.
In early 1995, EPA circulated a new draft permit which
produced significant concern from both the Corps and its
customers because it proposed new conditions setting limits on
the concentrations of iron, aluminum and total suspended
solids. This would have forced the construction of a residual
solids facility.
Late in 1995, Members of Congress requested EPA to delay
the permit to give the parties a chance to build a new facility
or develop an alternative plan, including a change in ownership
and operations of the aqueduct. In April 1996 EPA agreed to
delay the issuance of the permit and to work closely with the
customer to resolve these issues.
The Corps, EPA and the customers agreed on October 3, 1997
that contractors would undertake a new study of the aqueduct's
discharge. EPA believed this study, known as the discharge
study, was necessary to establish a scientifically sound basis
for any new requirements written into the reissued Washington
Aqueduct permit.
While the study was being developed, EPA also entered into
an interagency agreement with the Fish and Wildlife Service in
April 1998 to determine whether there were any cost-effective,
short-term actions which the aqueduct could employ to avoid
potential impacts to fish species that may migrate or spawn in
the vicinity of the discharges. EPA convened a panel of
fisheries biologists which provided recommendations on
minimizing impacts to migratory fish in March 1999. Meanwhile,
field work for the new discharge study began in August 1999 and
was completed in May of 2001.
The discharge study report was finalized on October 10,
2001. Based upon the results of this study and other
information available to EPA, it appears that the sediments
have a negligible effect upon juvenile and adult fish in the
Potomac River. In EPA's opinion, the studies show that the
discharge is not acutely toxic and that the chronic toxicity
tests, while not conclusive, seem to support the conclusion
that the discharge is not currently affecting juvenile and
adult fish. The study did suggest a potential risk of
smothering fish eggs and larvae if they are in the river at the
time of the discharge.
Based upon the concerns of National Marine Fisheries
Service about the possible presence of shortnose sturgeon and
the fisheries panel that the discharge may have a smothering
effect on early life stages of fish and in light of our on-
going Section 7 consultation about the sturgeon, EPA is
considering preparing a draft permit that will be beyond the
present permit requirements to protect the river and its living
resources. EPA is now preparing a draft permit which will be
submitted for public comment by the end of this calendar year.
In addition, as is normal practice, EPA will also consult
with the District of Columbia to assure that the new permit
meets water quality standards. We will continue consulting with
Fish and Wildlife Service and National Marine Fisheries to
ensure that endangered species and habitat are protected and
the requirements of the ESA and the Clean Water Act are met.
EPA expects to issue the final permit next spring.
I would like to thank the members of this Committee for
inviting me to speak here today and I would be happy to answer
any of your questions. Thank you.
[The prepared statement of Ms. Gleason follows:]
Statement of Patricia Gleason, Chief, Maryland and District of Columbia
Watershed Branch, Water Protection Division, U.S. Environmental
Protection Agency, Region 3
INTRODUCTION
Good morning, Mr. Chairman and members of the Committee. My name is
Patricia Gleason, and I am the Director of the Water Protection
Division at the U.S. Environmental Protection Agency Mid Atlantic
Regional Office in Philadelphia. I thank you for your invitation to
testify about EPA's NPDES permitting process and how that process
applies to the operation of the Washington Aqueduct.
EPA's ROLE
In accordance with the provisions of the Clean Water Act (CWA), EPA
is the permitting authority responsible for issuing NPDES permits in
the District of Columbia. In addition to its NPDES permit authority,
EPA is also responsible for the regulation of drinking water. EPA works
closely with the Washington Aqueduct and its wholesale customers, the
District of Columbia Water and Sewer Authority, Arlington County and
Falls Church, Virginia, to insure that the Aqueduct and its customers
comply with all applicable drinking water responsibilities and that
they provide their individual customers with high quality drinking
water. Finally, the Endangered Species Act (ESA) requires the EPA to
utilize its authorities to carry out programs for the conservation of
endangered and threatened species. Enacted to provide for the
conservation of the ecosystems upon which endangered and threatened
species depend, the ESA complements EPA's CWA authorities to restore
and maintain the biological integrity of the Nation's waters.
In general, EPA follows the following procedures when it issues an
NPDES permit. After EPA receives the permittee's application for an
NPDES permit (or in this case an application for renewal of the
permit), EPA begins work on a draft permit. A major part of this work
is preparing limits for the discharge of pollutants by the permittee.
Permit limits are based on both technology requirements and water
quality impacts, and they set conditions on the pollutants to be
discharged, such as restrictions on the mass and/or concentration of
the pollutants, timing of the discharge, and monitoring requirements.
EPA also puts in the draft general conditions that must be in any NPDES
permit. At the same time EPA prepares the draft permit, it also
prepares a fact sheet (a detailed explanation of the permit and its
terms) or a statement of basis (a less detailed explanation). Prior to
sending the permit out for public comment, EPA will send a draft
version of the permit to the appropriate State agency for certification
that the draft permit will be protective of the state's water quality
standards. In addition, the Region often discusses possible provisions
of the draft permit with Federal and State agencies before it completes
the draft permit. This provides essential information to the Region
which it uses to formulate well considered draft permits.
After EPA has completed the draft permit, the Agency sends out a
notice of its intent to issue the permit with the conditions set out in
the draft permit. The notice also includes a solicitation of comments
on the draft permit and the necessary information to request a hearing
on the draft permit. EPA sends the notice to, among others, the
permittee; other Federal agencies, including the Fish and Wildlife
Service (FWS) and National Marine Fisheries Service (NMFS); state
agencies with responsibility over fish, shellfish and wildlife in the
state; and persons who are on a mailing list EPA maintains of
individuals who have expressed an interest in NPDES permits. EPA's
NPDES regulations note EPA's obligation to comply with the ESA as well
as the possibility that EPA may impose conditions based upon comments
from FWS or NMFS. Notice of the draft permit is also published in a
daily or weekly newspaper within the area affected by the discharge.
Anyone may ask for a copy of the permit, the fact sheet (or statement
of basis) and at the same time request a public hearing. Depending upon
the interest in the permit, EPA may hold a public hearing to take
comments on the draft permit.
After the public comment period is closed, EPA reviews the comments
and prepares a document responding to the comments. At the same time,
the Agency prepares a final permit, making any changes that are needed
to respond to the public comments. EPA then issues the permit and sends
a notice to anyone who sent in comments on the draft permit that the
Agency has taken this action.
In taking any action to issue a permit, EPA must comply with the
applicable requirements in section 7 of the Endangered Species Act
(ESA) and 50 C.F.R. Sec. Part 402. Under section 7, EPA must ensure, in
consultation with the FWS and NMFS, that issuance of the permit is not
likely to jeopardize the continued existence of any listed threatened
or endangered species or result in the destruction or adverse
modification of designated critical habitats. EPA has recently entered
into a Memorandum of Agreement with the Fish and Wildlife Service and
National Marine Fisheries Service that describes the process that the
agencies will follow in consulting on NPDES permits. This process,
which tracks the requirements in 50 C.F.R. Part 402, includes a
determination by EPA whether the permitted activity may affect a listed
species and the need for informal or formal consultation. Based on the
consultation, EPA imposes any permit conditions needed to ensure that
the discharge is not likely to jeopardize the continued existence of a
listed species or result in the destruction or adverse modification of
designated critical habitat. Should the Service(s) anticipate
incidental take of listed species, EPA also considers changes to the
permit required by the Service(s) for incidental take to be authorized.
Any person who participated in the permit-issuance process is
entitled to appeal a final permit to an administrative body at EPA, the
Environmental Appeals Board, which can review whether the permit is
based on a finding of fact or conclusion of law which is clearly
erroneous, including a claim that the permit fails to comply with the
ESA.
The U.S. Army Corps of Engineers (COE) owns and operates the
Washington Aqueduct facility. The functions of the facility include the
collection, purification, and pumping of an adequate supply of clean
water for the District of Columbia, Arlington County (VA), and the City
of Falls Church (VA). The Washington Aqueduct provides the water supply
for approximately one million residents of the District of Columbia and
Northern Virginia. The area residents receive water through
distribution systems owned and operated by the Water and Sewer
Authority or WASA (for the District of Columbia), Arlington County, and
the City of Falls Church (the ``Customers''). Water distribution is the
responsibility of the Customers.
On April 3, 1989, EPA reissued NPDES Permit No. DC 0000019 to the
COE for the Washington Aqueduct facility, effective date May 3, 1989.
(EPA had previously issued this permit in 1983.) This NPDES permit
allows for the discharge of residual solids from cleaning out the
sedimentation basins used in water treatment to the Potomac River.
Discharges to the Potomac are allowed only during high flow conditions.
During these high flow events, the Potomac River contains a large
quantity of solids. The Aqueduct's discharge represents less than
twenty percent of the annual total river load of solids. The permit
does not require any treatment of the discharge.
The present permit contains monitoring requirements but no specific
effluent limits on Total Suspended Solids, Total Aluminum, Total Iron,
and Flow in the permit. The permit does prohibit the discharge of
floating solids or visible foam. The permit also requires the COE to
meet a pH level of not less than 6.0 standard units nor greater than
8.5 standard units. The COE must take monitoring samples at the time of
discharge. Samples are taken of pH, Total Suspended Solids, Total
Aluminum, Total Iron, and Flow. These samples provide EPA a
representation of the discharge's volume and nature. The COE reports
its monitoring results to EPA on Discharge Monitoring Reports.
This permit had an expiration date of May 2, 1994. The COE applied
for a new permit before the expiration date, and under 5 U.S.C.
Sec. 558(c) and 40 C.F.R. Sec. 122.6(a), the prior permit continues in
effect by operation of law pending EPA's decision to issue a new
permit.
The NPDES permit required COE to conduct several studies on the
toxicity of the discharge. The COE's contractor completed the initial
studies and issued a report in February 1993. This report concluded
that there were no apparent water quality effects from the release of
the discharges.
In early 1995, EPA prepared a draft permit for comment. A copy of
the permit was sent to the District of Columbia and the COE. In
February 1995 significant concern arose from the Customers and COE
because of the proposed new conditions in the draft permit. The new
conditions would have set limits on the concentrations of iron,
aluminum and total suspended solids from the Aqueduct's discharge. This
would have forced the construction and use of a residual recovery
facility. The Customers expressed concern about the cost of such a
facility. One issue for them was their ability to provide the lowest
possible capital and operating costs for the Aqueduct users. Both the
COE and the Customers also questioned the environmental necessity of a
recovery facility.
Late in 1995, Members of Congress requested EPA to delay the
issuance of the permit to give the various parties involved a chance to
build a new facility or develop an alternate plan including a change in
the ownership and operations of the Aqueduct. As a result, in April
1996 EPA agreed to delay the issuance of the permit to provide time to
explore the feasibility of turning over the operations of the Aqueduct
to another operator. EPA also agreed to work closely with the Customers
to resolve the issues.
On August 6, 1996, the Safe Drinking Water Act Amendments of 1996
(Public Law 104-182) became effective. Section 306 of the Amendments
outlined a plan for the future operations of the Aqueduct. Congress
encouraged the establishment of a non-Federal entity to take over the
operations of the Aqueduct. Section 306 also required that, before
reissuing the NPDES permit, EPA must consult with the Customers
``regarding opportunities for more efficient water facility
configurations that might be achieved through various possible
transfers of the Washington Aqueduct. Such consultation shall include
specific consideration of concerns regarding a proposed solids recovery
facility, and may include a public hearing.
After discussions among the COE, EPA, and the Customers, these
parties agreed on October 3, 1997, that contractors for the Customers
would undertake a new study of the water quality effects of the
Aqueduct's discharge and would address issues raised by EPA
(``Discharge Study''). The parties agreed that the Discharge Study
would include six parts: an effluent dilution and fate study, where a
computer simulates river flow and the suspended solid's plume to
determine acute and chronic dilution factors as a function of effluent
loading and river flow; effluent toxicity testing to determine the
toxicity of discharges to freshwater species; effluent chemical
characterization, using existing effluent discharge data to calculate
preliminary projections of receiving water concentrations in comparison
to water quality criteria; an analysis of the Potomac's fishery to
determine the effect of the discharge upon key anadromous and resident
fish species; an analysis of the Potomac's macroinvertebrate community
to characterize the community prior to and after discharge; and an
analysis of a modification of the aluminum criteria in the event the
other parts of the Aqueduct Study show that this would be desirable.
Recognizing the potential that new effluent limits and special
conditions in a revised NPDES permit could mandate the expenditure of
large amounts of public funds, EPA believed this study was necessary to
establish a scientifically sound basis for any new requirements written
into the reissued Washington Aqueduct permit.
While the study was being developed, EPA entered into an
Interagency Agreement (IAG) with FWS in April 1998 for assistance in
developing discharge guidelines for the Washington Aqueduct sediments.
The purpose of this work was to determine whether or not there were any
cost effective, short term remedies which the Washington Aqueduct could
employ to avoid potential impacts to fish species that may migrate or
spawn in the Potomac River in the vicinity of the Aqueduct discharges.
In order to perform this work, EPA convened a panel of fisheries
biologists from the District of Columbia, National Marine Fisheries
Service, State of Maryland, FWS and the Interstate Commission on the
Potomac River Basin (1998 Fisheries Panel) to provide recommendations
on minimizing impacts to migratory fish from sediment discharges at the
Aqueduct.
In March of 1999, the FWS submitted, in a report to EPA, the
results of the 1998 Fisheries Panel's study and recommendations. EPA
has discussed the results of the report with the COE. One
recommendation by the Panel was that there should be no discharge in
the Spring when anadromous fish spawn. This recommendation is difficult
for the COE to implement because Springtime is often the only time
during the year when high flow conditions are present in the Potomac
and the COE cannot predict if it will be able to discharge later in the
year. As stated earlier, the NPDES Permit limits the Aqueduct's
discharge to high flow conditions.
On June 24, 1999, EPA approved the study plan for the Discharge
Study. At EPA's request, staff from the Fish and Wildlife Service's
(``FWS'') Environmental Contaminants Branch from the Chesapeake Bay
Office assisted EPA in the initial planning for the Discharge Study.
EPA discussed the study plan with the FWS prior to approving it. The
Discharge Study was performed by scientists at EA Engineering, Science
& Technology, Inc. under contract to the Metropolitan Washington
Council of Governments on behalf of the Customers.
Besides assisting EPA with the planning of the Discharge Study,
FWS' Environmental Contaminants Branch has assisted in the review and
interpretation of data generated by the Discharge Study. In addition,
at the request of several citizen groups, FWS has participated with EPA
in public meetings and informational sessions, most notably in the
Spring of 2000 and on October 10, 2001. EPA was at both meetings to
explain the techniques used during the collection of environmental data
for the Discharge Study. EPA has reviewed the raw data which resulted
from the effluent toxicity testing part of the Discharge Study and
committed resources to review the draft Discharge Study and to follow
through, as necessary, to explain the results of the Discharge Study to
the public.
Field work for the studies began in August of 1999 and they were
finally completed in May of 2001. The Discharge Study Report was
finalized by October 10, 2001. Based upon the results of the study and
other information available to EPA, it appears that the sediments have
a negligible effect upon juvenile and adult fish in the Potomac River.
In EPA's opinion, the acute toxicity studies showed that the discharge
is not acutely toxic and the chronic toxicity tests, while not
conclusive, seemed to support the conclusion that the discharge is not
currently affecting juvenile and adult fish. The study did suggest a
potential risk of smothering fish eggs and larvae if they are in the
river at the time of the discharge.
Based on NMFS's continued concern about the presence of shortnosed
sturgeon, and the Fisheries Panel's similar concern that the discharge
may have a smothering effect on early life stages of fish, and in light
of our ongoing section 7 consultation about the sturgeon, EPA is
considering preparing a draft permit that will be beyond the present
permit requirements to protect the river and its living resources.
With the recommendations of the FWS panel and the completion of the
Discharge Study, EPA is now in a position to prepare a draft NPDES
permit. EPA anticipates that a draft permit will be submitted for
public comment by the end of calendar year 2001. This is an important
part of the permitting process because it allows the public to express
their opinion regarding the acceptability of the permit. In addition,
as is its normal practice, EPA will also consult with the DC Department
of Health to assure that the new permit meets DC Water Quality
Standards. We will continue consulting with US Fish and Wildlife
Service and National Marine Fisheries Service to ensure that endangered
species and habitat are protected. In addition, since that State of
Maryland and the Commonwealth of Virginia share the waters of the
Potomac with the District of Columbia, they too will be provided the
opportunity to comment on the draft permit. After reviewing the
comments, EPA will then prepare a response to the comments and issue
the final permit. The length of time it will take to issue a final
permit depends on a number of factors, including the number and content
of public comments received, and results of Congressionally mandated
consultation with the Customers. At this time, EPA would expect to be
in a position to issue the final permit in the Spring 2002.
As described above, EPA consults with the Service(s) whenever
discharges under an NPDES may affect a listed species. EPA has
discussed with the FWS and NMFS whether listed species, including the
shortnose sturgeon, are present in areas potentially impacted by
discharges from the Aqueduct. EPA is engaged in informal consultation
with the FWS regarding potential effects, if any, on listed species.
The shortnose sturgeon is under the jurisdiction of NMFS, which is the
expert agency with regard to this species. According to NMFS, there are
no data documenting the presence of sturgeon in waters affected by the
discharge, although the presence of shortnose sturgeon has been
documented in the lower and middle tidal reaches of the Potomac River
and the habitat in the upper tidal Potomac River at Little Falls is
similar to shortnose sturgeon spawning habitat in other river systems.
Because sampling for shortnose sturgeon has been limited to 77 hours of
sampling in two areas in the upper tidal reaches, additional data
gathering would be necessary to conclusively prove its presence or
absence. While EPA is not required to consult on an action that will
have no effect on listed species, EPA and NMFS are taking a
conservative approach and are currently engaged in informal
consultation regarding the sturgeon. EPA will complete this process in
accordance with the consultation procedures in the Service regulations
and include any permit conditions needed to ensure compliance with the
requirements of section 7 of the Endangered Species Act. In addition
the Agencies have held telephone conversations discussing the steps
that they would take to deal with the possibility that the reissuance
of the NPDES Permit might affect these species.
In sum, I would characterize our status at this point in reissuing
the Aqueduct's permit as gathering information, including the
information shared as a result of our consultations with the Services,
so that we can prepare a draft permit that meets the requirements of
the ESA and the CWA. I would like to thank the members of this
committee for inviting me to speak here today. Since these matters have
been the subject of litigation, for the past year a significant amount
of speculative information has been circulated. I appreciate the
opportunity to appear before you to explain the current status of this
important matter. Thank you.
______
Mr. Radanovich. Thank you very much.
Col. Fiala, thank you and welcome.
STATEMENT OF COLONEL CHARLES J. FIALA, JR., COMMANDER AND
DISTRICT ENGINEER, BALTIMORE DISTRICT, U.S. ARMY CORPS OF
ENGINEERS, BALTIMORE, MARYLAND
Col. Fiala. Thank you, Mr. Chairman, members of the
Committee. I appreciate the opportunity to testify this
morning. I am Colonel Charles J. Fiala, Jr., commander and
district engineer of the Baltimore District Corps of Engineers,
United States Army.
The Baltimore District has a long and distinguished history
of service to the nation, the region and the city. Members of
my 1,200-person staff continue to support recovery operations
at the World Trade Center and at the Pentagon. For more than
two decades the Baltimore District has been in the forefront of
environmental restoration in the Chesapeake Bay, including
projects that have provided improved water quality and habitat
in the Potomac, Anacostia and Susquehanna Rivers.
You asked me to provide information on the legally
permitted discharges of the Washington Aqueduct, a division of
the Baltimore District. I would first like to summarize the
major role the aqueduct plays in supporting our nation's
capital and the surrounding areas, then respond to the issues
raised by your invitation.
In 1853, at the direction of Congress, the Corps began
construction of the aqueduct. We have supplied water to the
District of Columbia since 1859. Many of the original
structures from the 1850's are still in operation and many
others date back to the 1920's. Most of the real estate
supporting the aqueduct's mission and current treatment
processes were acquired and functioning decades before the C&O
Canal became a national park.
Today the aqueduct provides all water supplied to
Washington, D.C., Arlington County, Virginia and the City of
Falls Church, Virginia. This area is home to many agencies that
support the administration and the defense of this country,
including the very building we are meeting today; in fact, the
water we have sitting out here today.
For example, the aqueduct supplied water used to fight
fires at the Pentagon on 11 September. Providing high-quality,
safe and affordable water to approximately 1 million customers
in these areas, particularly in light of the 11 September
attacks on our country, is one of our highest priorities.
The aqueduct is a unique Federal institution in that it
operates like a business. It gets its operational and capital
improvement funds from the fees it charges its customers for
the water it supplies. It is regulated by the Safe Drinking
Water and Clean Water Acts and takes its compliance
responsibilities seriously. It operates in accordance with the
National Pollutant Discharge Elimination System permits issued
to it by both the State of Maryland and the Environmental
Protection Agency. These permits allow the aqueduct to make
routine discharges from sediment basins and infrequently
maintained-related discharges.
All water treated by the aqueduct comes from the Potomac
River that naturally transports a very large sediment volume.
Treatment involves a three-step process that includes sediment,
filtration, and disinfection. In the case of the aqueduct,
sediment removal begins in an initial sediment basin, then
occurs more actively in six large basins with the aid of a
coagulant, aluminum sulfate, that is typically used in the
water production industry.
Periodically these six sedimentation basins must be cleaned
of the sediment build-up. Their contents, which include raw or
river water, the accumulated sediments, and the accumulated
coagulant, are flushed into the Potomac River, in keeping with
the terms of the EPA discharge permit. We estimate that 95
percent of the sediments discharged from naturally occurring
sediment from the river and 5 percent of the solids are due to
the coagulant. The volume of the solids discharged to the
Potomac River from the six basins is only about one-half of the
total volume of solids removed from the water, taken from the
river. At a maximum, it represents less than 1 percent of the
solids in the river flow during the discharge period.
With respect to the nonroutine discharges for plant
maintenance, the State of Maryland permits the aqueduct to
discharge raw water--that is, untreated water--into the streams
and on lands across park property. EPA has also issued the
aqueduct a permit that allows discharge of raw water dosed with
coagulant if maintenance is required on a major conduit. The
path of this discharge is open and crosses the park property.
Discharges of this nature seldom occur, once every 2 years for
approximately 6 hours.
Two other discharges are allowed under this permit. One is
the ground drain water from under the sediment basins. That
water goes directly to the Potomac River. The other is a drain
water from a large conduit to Rock Creek. That discharge might
occur only once in 10 years and involve sediment-free, clear,
unchlorinated water.
All of our discharge points or outfalls are properly
regulated and comply with Federal and state permits. At this
time there are no known effects from these discharges on the
C&O Canal Historic Park property.
The next issue you asked me to discuss is the impact of
sediment discharges, if any, on the shortnose sturgeon. As you
are aware, that particular question is subject to current
litigation brought on by the National Wilderness Institute
against several of the Federal agencies testifying here today.
In accordance with the Endangered Species Act, consultation
among Federal agencies regarding the shortnose sturgeon is on-
going at this time.
I can mention that at the request and direction of the EPA,
we contracted for two significant scientific efforts to study
the impacts, if any, of sediment discharges upon aquatic life
of the Potomac River. Based on the study plan coordinated with
Fish and Wildlife, approved by the EPA Region 5 and performed
in accordance with accepted scientific procedures and analysis,
the most recent study was just completed and sent to these
agencies. EPA is now determining whether to reissue the
aqueduct's current permit for the sediment discharges.
Meanwhile we continue to work with the EPA and our other
Federal parties to do what is best for the environment and
ensure the availability and safety of the drinking water we
supply this region.
Again I thank you for this opportunity to be here this
morning to apprise the Subcommittee about the operations of the
Washington Aqueduct and I will respond to your questions.
[The prepared statement of Col. Fiala follows:]
Statement of Colonel Charles J. Fiala, Jr., Commander and District
Engineer, Baltimore District, U.S. Army Corps of Engineers
Mr. Chairman and members of the subcommittee, thank you for
inviting me to testify before you today. I am Colonel Charles J. Fiala,
Jr., the Commander and District Engineer of the Baltimore District,
United States Army Corps of Engineers.
You invited me here today to provide information regarding the
legally permitted discharges of the Washington Aqueduct, which is a
division within the Baltimore District. I would like to provide a brief
background of the significant role the Washington Aqueduct plays in
support of our nation's capital and the surrounding areas and then
respond to the issues raised in your invitation.
At the direction of Congress in 1853, the United States Army Corps
of Engineers began construction of the water delivery system that is
today known and operated as the Washington Aqueduct. The United States
Army Corps of Engineers has continuously supplied water for drinking,
fire protection, and a host of other purposes to the City of Washington
and the District of Columbia since 1859. Many of the original
structures from the 1850s are still in operation and many others date
back to the 1920s. Consequently, many of the real estate interests
acquired to support the Aqueduct's mission and the treatment processes
currently used by the Aqueduct were acquired and functioning decades
before the C&O Canal National Historic Park became a national park.
Today, we own and operate wholesale water production facilities
that provide all of the water supplied to Washington, D.C., Arlington
County, Virginia, and the City of Falls Church, Virginia, an area home
to numerous agencies which support the administration and defense of
this country including the very building we are meeting in today. By
way of example, the Washington Aqueduct supplied the water used to
fight the fires at the Pentagon on September 11, as it would for any
fire in any one of these three jurisdictions. Providing high quality,
safe, and affordable water to the approximately one million consumers
in these areas, particularly in light of the September 11 attack on
this country, is one of my highest priorities.
The Washington Aqueduct's manager works under my general
supervision. The Washington Aqueduct is a unique Federal institution.
While much of the Federal Government is totally or largely dependent
upon congressional appropriations, the Washington Aqueduct operates as
a business. It receives the funds it needs to operate by way of the
fees it charges its three local government customers for the water it
supplies. Capital improvements are also funded by the customers. At the
same time, like all of the other drinking water production facilities,
the Washington Aqueduct is regulated by the terms of the Safe Drinking
Water Act and the Clean Water Act. The Washington Aqueduct takes its
compliance responsibilities seriously. It operates in accordance with
the National Pollutant Discharge Elimination System (NPDES) permits
issued to it by both the State of Maryland and by Region 3 of the
Environmental Protection Agency (EPA).
To respond to the issues you raise, let me clearly state that all
water treated by the Washington Aqueduct comes from the Potomac River
and that approximately 95% of the sediments the Washington Aqueduct
discharges back into the Potomac River are Potomac River sediment.
Treatment is a three-step process that includes sedimentation,
filtration, and disinfection. The large volume of sediment that is
naturally transported by the Potomac River and drawn into the treatment
process must be removed. In the case of the Washington Aqueduct,
sediment removal begins in an initial settlement basin, then occurs
more actively in six large basins with the aid of a coagulant. The
coagulant currently used by the Washington Aqueduct is aluminum
sulfate. This is typical of the water industry.
Periodically, these six sedimentation basins must be cleaned of the
sediment build-up. When that occurs, the contents, which include raw
water, i.e. river water, the accumulated sediments, and the accumulated
coagulant, are flushed to the Potomac River in accordance with the
terms of the NPDES permit issued by EPA Region 3. Approximately 95
percent of the sediments discharged are naturally occurring sediment
transported by the river before the water was drawn into the treatment
process. We estimate that about five percent of the solids of any
discharge are attributable to the coagulant. At the last stage of the
basin cleaning, some finished water (i.e. drinking water) is used in
fire hoses to flush out the last of the sediments. That drinking water
does contain chlorine, but the physical action of the water on the
walls and bottom of the basin volatizes some of that chlorine. The
remaining chlorine content of the drinking water used for this purpose
reacts with the sediment effectively using up all free chlorine
potential.
To put the discharges into perspective, the current permit allows
discharge only when the flow of the Potomac exceeds 3.5 billion gallons
per day. Normally a discharge event from one of the sedimentation
basins will be completed in a 24-hour period. From the most often
drained basins, the volume of the discharge would be in the range of 12
to 18 million gallons, which as a maximum is about one percent of the
flow of the river during that 24-hour period. The volume of solids
discharged to the Potomac River from the six sedimentation basins is
only about one half of the total volume of solids that were removed
from the water taken from the River. That other half remains in the
initial sedimentation basin which acts as a pre-sedimentation basin
before the raw water is dosed with a coagulant in the formal treatment
process.
With respect to the C&O Canal National Historic Park, the
Washington Aqueduct, in accordance with EPA and State of Maryland
permits, conducts two types of discharges. They are the just-described
routine sedimentation basin discharges that occur approximately 16 to
20 times a year and infrequent discharges of raw or partially treated
water to allow for maintenance of Washington Aqueduct infrastructure.
The routine water treatment solids, i.e., sediment, discharges use
three conduits to get those solids to the Potomac River. One of those
conduits is a closed pipe that runs underground through the Park's
property and discharges into the Potomac River approximately 12 to 16
times per year. A typical discharge lasts 12 hours. These discharges
are in accordance with the EPA NPDES permit. At the point of discharge,
the sediment enters the Potomac River below water level from a concrete
structure slightly offshore. No sediment is deposited within the C&O
Canal National Historic Park at that location.
The other two conduits discharge onto Park property approximately
75'' from the shore of the Potomac River and follow a channel into the
River. These discharges are also in accordance with the EPA NPDES
permit and occur approximately 4 to 6 times per year for approximately
12 to 18 hours. The closed discharge pipes at those locations run
underground from the sedimentation basins and end in a headwall about
50 to 75 feet from the river. A small channel a few inches deep at each
location extends from the headwall, traveling perpendicular to the
river, and transports the liquid and the solids until they enter the
River and are mixed and carried downstream. During a discharge, the
sediment is confined to that channel and does not otherwise affect the
surrounding land. There is no build- up of residue from the sediment
discharges on Park land.
With respect to the non-routine discharges to accomplish plant
maintenance, the State of Maryland, under a Maryland General Discharge
Permit, allows the Washington Aqueduct to discharge raw water into
streams and on lands which cross Park property. These discharges are
infrequent, approximately once a year. In only one location where
infrequent discharge occurs is there the potential for chlorinated
water to leave the Washington Aqueduct treatment plant and enter the
waters of the State of Maryland. This may occur approximately 5 to 6
times per year for a few hours at a time. In that instance, a
dechlorination station is used to properly dechlorinate the water
before it leaves the treatment plant.
EPA has also issued Washington Aqueduct an NPDES Permit (DC0000329)
that allows discharge of raw water dosed with coagulant should
maintenance be required on a major conduit. The path of this discharge
is open and crosses Park property. Discharges of this nature occur
infrequently, approximately once every two years, for approximately six
hours. There are two other points allowed under this permit. One is to
drain ground water from under sedimentation basins. That water goes
directly to the Potomac River. The other is to drain water from another
large conduit to Rock Creek. That discharge might occur only once in 10
years and would be clear unchlorinated water.
All of our discharge points or outfalls are properly regulated by
and comply with NPDES permits. Where other private or public properties
are crossed, proper land usage rights have been obtained.
At this time, there are no known adverse effects on C&O Canal
National Historic Park property as a result of these discharges.
The next issue associated with the Washington Aqueduct's sediment
discharges that the committee has asked me to discuss is the impact of
the discharges, if any, upon the shortnose sturgeon. That particular
question is the subject of current litigation brought by the National
Wilderness Institute against a number of the Federal agencies
testifying here today. My testimony is therefore somewhat constrained
so as not to compromise the Government's ability to present a sound
defense in this litigation. In accordance with the Endangered Species
Act, consultation among the Federal agencies regarding the shortnose
sturgeon is ongoing at this time.
At the request and direction of the Environmental Protection
Agency, the United States Army Corps of Engineers contracted for two
significant scientific efforts to study the impacts, if any, of the
sediment discharges upon the aquatic life of the Potomac River. The
first effort was a study completed by Dynamac Corporation in 1993. This
report concluded that there were no apparent water quality effects from
the release of the discharges. The second effort, based upon a study
plan coordinated with the United States Fish and Wildlife Service and
approved by EPA Region 3, was a study conducted by EA Engineering,
Science, and Technology, Inc., which has just been completed.
Washington Aqueduct provided the report for that study to EPA Region 3
on October 5. This report is based upon accepted scientific procedure
and analysis. Based upon the results of the study and other information
available to EPA, it appears to us at the Corps that the sediments have
a negligible effect upon the Potomac River. The executive summary from
the report is attached as an exhibit to my testimony. EPA is in the
process of determining whether to reissue the Washington Aqueduct's
current NPDES permit for the sediment discharges, and, if so, under
what conditions.
In conclusion, the United States Army Corps of Engineers continues
to work closely with the EPA and all of our other Federal agency
partners both to do what is best both for the environment and to ensure
the availability and safety of the drinking water we supply to this
region.
Again I thank you for the opportunity to be here this morning to
apprise the subcommittee of the operations of the Washington to
Aqueduct and to respond to your questions.
______
Mr. Radanovich. Thank you, Col. Fiala.
Mr. Gordon.
STATEMENT OF ROB GORDON, DIRECTOR, NATIONAL WILDERNESS
INSTITUTE, ALEXANDRIA, VIRGINIA
Mr. Gordon. Thank you, Mr. Chairman, Committee members.
Thank you for holding this hearing to investigate the damage
done to the flora, fauna and habitat and the natural and
cultural values of the C&O National Park from the Washington
Aqueduct's discharges.
Mr. Chairman, you have seen the massive black plume and
tons of chemically treated sludge seep down the Potomac.
According to the Corps, it is the equivalent of dumping 15
dump-trucks a day into the Potomac.
Mr. Radanovich. Mr. Gordon, I hate to be in the practice of
interrupting opening statements but I just wanted to draw
people's attention to the picture over there. The light brown
color is the high water turbidity, normal turbidity of the
Potomac River. Especially after rains, you will notice how it
is. The black plume down there is the actual discharge of
sediment from the basins into the river. That is black sludge
there.
I believe we have little packets on your desk there that
shows you exactly. We do not have enough for every member; I am
sorry, but that is what the sludge looks like and that is the
contrast of it happening in the Potomac River there near the
C&O Canal.
The other picture there is a nighttime picture of the foam.
There is a green stick in the water there; that is an oar and
that is rowing through the sludge as it is being dumped into
the river at nighttime. Then the other picture to the right
there is the foam on the Potomac River after the dumping the
night before.
So in reference to the plume and the effect of it on the
Potomac, those are visual examples of what is going on there.
Thank you.
Mr. Gordon. Do I get an extra minute?
Mr. Radanovich. Yes, you get an extra minute.
Mr. Gordon. According to the Corps, the dumping that you
have just seen the photographs of is the equivalent of 15 dump-
trucks a day into the Potomac. The Park Service would never
tolerate this in Yosemite or Yellowstone.
As recently as August, the Corps discharged into Little
Falls Branch with chlorine levels that exceeded Maryland's
limit by five times, a limit below which chlorine is used to
kill aquatic life that might otherwise grow in nuclear power
plant cooling water intakes.
Rather than fix these problems, you are hearing today from
agencies that defend the practice, stating that what you are
seeing is not really what you are seeing and that the standards
somehow do not apply here and that although they have had
studies, draft permits, hearings and more studies and another
draft permit, you should trust that they will work it out, even
though the dumping really is not bad or getting any special
treatment.
The Corps has stated that the sludge is from the river and
includes a little alum. Little means 10,000 tons, almost three
10-ton dump-trucks a day all year long. How long would it take
for the average American to be indicted, convicted and
imprisoned for dumping just one dump-truck of alum into a pond
outside the Beltway?
The Corps discussed diverting its sludge to a D.C. sewage
facility 30 years ago and its 1989 permit called for provisions
for a sludge-handling system. A later EPA consent order
required design work for a dewatering facility so sludge could
be hauled off-site, and EPA draft permits had limits that would
have required a treatment facility. These permits were delayed
until the question of transferring the facility was resolved,
which the Army decided not to do. Then, rather than solve the
problem, yet another study was undertaken. This study, too,
argues it is okay to dump without any limits. It, however,
makes conclusions that cannot be substantiated and even in a
reading most favorable to the Corps, finds that alum is
discharged at rates that exceed EPA's criterion and itself
recommends terminating discharges for a third of the year and
extending one discharge pipe several hundred feet to dilute
now-toxic discharges to nontoxic levels.
Why has the dumping been allowed? Corps and EPA documents
express concern about ``trucking through an affluent
neighborhood'' or ``high-value areas'' and the ``political
nature of the neighborhood'' and worry that ratepayers oppose
an increase. One EPA official remarked about wholesale
customers who ``worked over'' public officials who are
``shocked'' to learn of the dumping. And, of course, there have
been letters, memos, and meetings with Senators,
Representatives and other officials.
The Corps defends its practice, stating that it has been
doing this since 1927. How many other big point source
polluters can tell you that the Clean Water Act has had no
effect on them? How many can tell you it is okay with the EPA
and the National Park Service and the National Marine Fisheries
Service to dump in a national park and habitat considered the
primary, if not only spawning ground of a Federally endangered
species that is considered to be generally present? The answer
is none.
Please listen carefully to the testimony and the comments
you will hear today and then contact the agency heads
represented here and ask them if, in fact, their agencies
policies were accurately represented because when you strip
away the parsing, here is what you are being told.
NPS: It is okay to dump tens of millions of pounds of
chemically treated sludge and tens of thousands of gallons of
water with chlorine levels that exceed state standards by
fivefold into a national park and to dump sludge that is toxic
to aquatic life and threatens the survival of fish species of
concern on NPS-controlled river bottoms.
Corps: It is okay to dump into U.S. waters in direct
violation of an NPDES permit and with more than 83 percent of
the discharges above Chain Bridge having concentrations of
total suspended solids that are greater than the effluent found
to be acutely toxic to fish in its own study and to do so at
night to intentionally obscure the discharges' effects.
NMFS: It is okay to discharge hundreds of thousands of tons
of chemically treated sludge into suitable spawning habitat for
an endangered fish it considers present generally so long as no
study following NMFS's protocol has been taken or so long as
one can argue that any endangered fish that is killed without
an incidental take statement may have come to this river from
another.
And EPA: It is okay to dump into an American Heritage river
and a tributary of the Chesapeake Bay with total suspended
solids concentrations in the tens of thousands and to routinely
exceed an EPA pollutant criterion and to allow this, at least
in part and in spite of the EPA administrator's focus on
environmental justice because the neighborhood around the
facility is affluent.
Each of the agencies represented here today and charged
with protecting our nation's resources actions are consistent
with the positions I have just described. Exactly, I am not
sure why but it is my hope that you will find out and help fix
the problem. Thank you.
[The prepared statement of Mr. Gordon follows:]
Statement of Rob Gordon, Director, National Wilderness Institute
Mr. Chairman:
Thank you for holding this hearing to investigate the damage done
by discharges from the Washington Aqueduct to the flora, fauna and
habitat and the natural and cultural values of the Chesapeake and Ohio
National Historic Park. Sadly these discharges are conducted by the
Corps and permitted by EPA.
For years, the discharges from the Washington Aqueduct have harmed
this National Park that otherwise retains tremendous natural beauty
near the heart of a major metropolitan area and is built around one of
the greatest American Heritage Rivers, the Potomac River, an
irreplaceable symbol flowing through our Nation's Capital. Sections of
this unique park were surveyed by our first president. The Potomac is
enormously popular with fishermen, paddlers or other recreationalists
because of its unique physical characteristics from the majesty of
Great Falls to the spawning grounds below Little Falls that may be the
primary if not only spawning grounds of a highly endangered fish.
This EPA permitted dumping by the Corps clearly violates numerous
Park Service Rules, the Clean Water and the Endangered Species Act and
is an offense to those who appreciate this park.
When the Corps dumps a massive black plume with a rotten stench
clouds the Potomac as its seeps through the center of the Park.
Millions of pounds of sediment with alum are dumped into the Potomac
within a matter of hours.
According to the Corps of Engineers itself, it is the equivalent of
dumping 15 dump trucks a day, every day all year into the Potomac. Let
me repeat that--15 dump trucks a day, every day all year into the
Potomac. The National Park Service would never--never--tolerate this in
the Grand Canyon, at Glacier, at Yellowstone or the Everglades. This
single undisputed fact, I think, would seem to the average American all
the rationale that is necessary for this hearing to conclude that this
practice is wrong, should have stopped years ago and must be
immediately addressed. It is disgraceful and deeply disturbing that
agencies charged with stewarding our nation's treasures and protecting
our natural resources are party to this.
As recently as August of this year this same facility was found to
be discharging treated water into Little Falls Branch in the National
Park having chlorine levels that exceed Maryland state standards by 4
and 5 times.
But rather than fix these problems, you are hearing today from
officials who have been actually telling people that what you have seen
really isn't that bad, and whatever standards exist somehow what they
do does not violate them and that they should just given more time to
work it out.
Documents show the Corps actually discussed diverting this
discharge to D.C.'s Blue Plains sewage treatment facility about three
decades ago and the Clean Water Act permit issued in 1989 called for
provisions for a ``sludge handling system.'' A consent order issued by
EPA after the Corps violated water quality standards related to the
safety of drinking water required the Corps to actually conduct much of
the design work of a dewatering facility so that the tons of pollution
could be hauled offsite. Around that time EPA draft permits would have
placed limits on the discharges resulting in the requirement that a
treatment facility be constructed. These new permits were delayed until
the question of transferring ownership of the facility was resolved.
The Army reviewed transferring ownership but then decided it would not
transfer ownership of the facility. Rather than solve the problem yet
another study was undertaken.
The Corps' newest study is yet another excuse to further delay
addressing the problem and continue the dumping into the Potomac
without any limits whatsoever on total suspended solids and alum. The
new study, however, makes conclusions that cannot be substantiated with
the data generated. The Corps own recommendations call for terminating
discharges for a third of the year and extending one discharge pipe
several hundred feet into the river to sufficiently dilute discharges
so that they will not be toxic in the future.
This practice--the midnight dumping of millions of pounds alum
tainted sludge that measures in the 10,000 of milligrams of suspended
solids per liter--is not reasonable or common. The Corps has, somewhat
amazingly, defended their practice by stating that it has been doing it
this same way since 1927. How many other enormous point source
polluters can tell you unabashedly that the Clean Water Act has had no
effect on the way they dump? How many can tell you they don't have to
change their practices even though they dump in and through a Untied
States national park and into habitat considered the primary if not
only spawning ground of a Federally endangered species that regulatory
agencies say is ``present generally.'' The answer is no other facility
in the entire country and it is time for this facility to stop harming
a national park, an American Heritage River, our Nation's Capital and
an endangered species, abide by the policies, standards, and laws
applied to the rest of America, and join the modern world.
______
Mr. Radanovich. Thank you, Mr. Gordon.
Mr. Leisch, welcome.
STATEMENT OF GORDON LEISCH, FIELD BIOLOGIST, FORMERLY OF THE
DEPARTMENT OF THE INTERIOR, OFFICE OF ENVIRONMENTAL POLICY,
ARLINGTON, VIRGINIA
Mr. Leisch. Mr. Chairman, thank you for holding this
hearing and giving me the opportunity to testify.
My name is Gordon Leisch. I have a bachelors degree in
biology, a masters degree in biology and ecology. From 1970
until 1974 I was employed by the U.S. Army Corps of Engineers
Omaha District where, as a field biologist, I wrote
environmental impact statements and I wrote the environmental
protection section to civil work contracts. From 1974 until I
retired in 1997, I was in the Department of Interior and I
worked in the Office of Environmental Policy.
I have been an avid fisherman in the Potomac River all my
life. I grew up close to Little Falls. I still fish there
today. I am on the river almost every day of my life. I have
witnessed the effects that these discharges have upon the
Potomac River and can tell you from firsthand experience that
they are causing serious harm. As soon as the discharge hits
the main body of the Potomac River, all feeding activity
ceases. All feeding and chasing of the fish either goes to the
D.C. side or it just totally disappears. You can see fish
avoiding the area. The cormorants leave. The great blue herons
leave. They go to other places. If you look above the outflow
upriver, everything is normal. Fishing goes on.
I can recall during my high school days in the early 1950's
there were infrequent discharges from Dalecarlia Reservoir into
Little Falls Branch and the old spillway which is now the
service road to the emergency pumping plant. Today the
discharges are more frequent, more intense and more offensive.
If you happen to be on the platform area of the emergency
pumping plant when a discharge occurs you will see the effluent
skirt two feet high out of the bolt holes in the metal plates.
I have seen the discharge shoot across the Potomac River to the
Virginia shoreline. It depends on the river stage how far it
will shoot but the muddy sediment persists until Key Bridge.
This year, beginning in February, heavy dumping occurred
frequently well into June, more than any previous year that I
have observed. It would be a miracle if any fish spawn survived
the spring in the area of the Little Falls. Sediment can be
very harmful to fish, especially when it interferes with
spawning, and these discharges occur in the spawning grounds of
rockfish, shad, perch and many other fish. The endangered
shortnose sturgeon is known to be in the Potomac and Little
Falls is the only suitable spawning grounds in the river.
I have seen sediment that was six to eight inches deep
after a discharge. On the D.C. side where the river is slower
and shallower I have seen sediment several inches deep all the
way to Chain Bridge. The sediment covers the river bottom until
it is flushed away by heavy rains or high water. The sediment
could easily smother any eggs or larva that are in the area.
Normally the discharge is clay-colored, foamy and heavy
with sediment. Some of the discharges this year were soupy,
dark gray in color and had the odor of an open septic tank. The
stench from a discharge that occurred May 22 was so powerful
that it could be smelled a mile downriver from the point of
discharge. Fishermen, including myself, often refer to Little
Falls Branch as ``stinky creek'' because of the chemical smell
from the discharges. Some fishermen have told me that they were
almost overcome by the chlorine fumes and they had to leave the
area. Aquatic insects and plants present in other creeks nearby
are not found in Little Falls Branch below the discharges. From
the point where the discharges come from outfall 5, Little
Falls Branch is devoid of life. I have seen dead eels,
bluegills, perch, shad and even a turtle that apparently
entered the creek between discharges.
At times a root beer-colored foam covers the river from
shore to shore and that was that one picture that you had up
there and the one little bit of green was the green paddle from
the rowboat. This foam is not naturally occurring.
In summary, I wish to make three points that I believe are
beyond dispute. The first is that the discharges of this size
affect fish behavior in a critical spawning and nursery area. I
am uncertain whether the fish leave, whether they go deep,
whether they suspend, but there is no doubt that the sediment
has an effects on the behavior of the fish feeding, migrating
and spawning. Even fish-eating birds leave during a discharge.
I know from 50 years of fishing in this area that spawning
conditions for all species of fish has never been worse.
The second is that these discharges cause mortality to fish
and wildlife and destroy habitat in the park and in the
Potomac. A few years ago I accompanied a Fish and Wildlife
Service biologist on a survey of the river bottom affected by
the discharges. He found only two specimens of submerged
aquatic vegetation at five snorkeling locations. These
locations were downstream from the outflow.
The third point is that these discharges are highly
offensive. They have a revolting smell. They look horrible.
They despoil a prime outdoor recreation area used by joggers,
paddlers and fishermen. These discharges should not be
permitted anywhere and certainly not in a national park.
Thank you, Mr. Chairman, for permitting me to testify. I
would be happy to answer any questions.
[The prepared statement of Mr. Leisch follows:]
Statement of Gordon Leisch, Field Biologist, Formerly of the U.S.
Department of the Interior, Office of Environmental Policy
My name is Gordon Leisch. I have a bachelor's degree in biology and
a master's degree in biology and ecology. From 1970 through 1974 I was
employed by the Army Corps of Engineers writing environmental impact
statements, serving as a field biologist and writing the environmental
protection section for civil works projects. From 1974 through my
retirement in 1997 I was employed by the Department of Interior in the
Office of Environmental Policy.
I have been an avid fisherman of the Potomac for all my life,
having grown up near Little Falls and fishing regularly there from
childhood through today. I am on the river almost every day of the
year.
I have witnessed the effects the discharges from the Washington
Aqueduct are having on the Potomac River and can tell you from careful,
direct observation that they are causing serious harm. These discharges
are flushed through the C&O Canal National Historic Park into the
Potomac River, an American Heritage River. As soon as a discharge hits
the main body of water, all feeding activity ceases. All biting ceases.
You can no longer see fish feeding or chasing bait. You see fish
avoiding the sediment plume. Birds such as the great blue heron and
cormorants leave the area. Above the outflow, fish activity goes on, so
there is no doubt the dramatic change in fish behavior is caused by the
discharges.
I can recall that during my high school days in the early 1950's
there were infrequent discharges from the Dalecarlia Reservoir into
Little Falls Branch and the old spillway, which is now the service road
to the emergency pumping plant. Today, the discharges are more
frequent, more intense and more offensive. If you happen to be on the
platform area of the Emergency Pumping Plant when a discharge occurs
you will see the effluent squirt two feet high out of the bolt holes in
the metal plates. I have seen the discharge shoot across the Potomac
River to the Virginia shore. Depending on river stages, muddy sediment
from the discharge can persist past Key Bridge.
This year, beginning in February, heavy dumping occurred frequently
well into June, more than any previous year that I have observed. It
would be a miracle if any fish spawn survived this spring in the
vicinity of Little Falls. Sediment can be very harmful to fish,
especially when it interferes with spawning and these discharges occur
in the spawning grounds of rockfish, shad, perch and other fish. The
endangered shortnose sturgeon is known to be in the Potomac and Little
Falls is its only suitable spawning grounds in the river.
I have seen sediment that was 6 to 8 inches deep after a discharge.
On the DC side where the river is slower and shallower, I have seen
sediment several inches deep all the way to Chain Bridge. The sediment
covers the river bottom until it is flushed away by heavy rains or high
water. The sediment could easily smother any eggs or larval fish that
are present.
Normally the discharge is clay colored, foamy and heavy with
sediment. Some of the discharges this year were soupy, dark gray in
color and had the odor of an open septic tank. The stench from a
discharge that occurred on May 22 was so powerful that it could be
smelled a mile down river from the point of discharge.
Fishermen, including myself, often refer to Little Falls Branch
that flows through the C&O Canal National Park as ``stinky creek''
because of the chemical smell from the discharges. Some have told me
that they were almost overcome by the chlorine fumes and felt they had
to flee for their lives. Aquatic insects and plants present in other
creeks nearby are not found in Little Falls Branch after the
discharges. From the point where discharges from outfall 5 enter it,
Little Falls Branch is devoid of life. I have seen dead eels,
bluegills, perch, shad and even a dead turtle in the creek. They
apparently entered the creek between discharges.
At times a root beer colored foam from the discharges covers the
river almost bank to bank. I keep a log of river conditions. The log
shows that the foam corresponds almost exactly with the discharges. I
took some photographs of the foam and brought enlargements with me to
show this Committee. To give you a sense of perspective on how thick
the foam is, I can tell you that the green object in the foreground is
an oar. The pictures were taken near Fletcher's Boat House that is in
the National Park. You can see for yourselves that this is not
naturally occurring foam.
In summary I wish to make three points that I believe are beyond
dispute.
The first is that discharges of this size and nature affect fish
behavior in a critical spawning and nursery area. I am uncertain
whether the fish leave or go deep or suspend, but there is no doubt
that their essential behavior patterns of feeding, migrating and
spawning are interrupted. Even fish eating birds leave during a
discharge. I know from fifty years of fishing the area that spawning
conditions for all species have never been worse.
The second is that these discharges cause mortality to fish and
wildlife and destroy habitat in the Park and in the Potomac. A few
years ago I accompanied a Fish and Wildlife Service biologist on a
survey of a section of the river bottom affected by the discharges. He
found only two specimens of submerged aquatic vegetation at the five
snorkeling locations he sampled downstream from the outfalls.
The third point is that these discharges are highly offensive. They
have a revolting smell. They look horrible. They despoil a prime
outdoor recreation spot used by joggers, paddlers, and fishermen. These
discharges should not be permitted anywhere, and certainly not in a
national park.
______
Mr. Radanovich. Thank you, Mr. Leisch.
Just on a programmatic discussion here, I think I am going
to give--I have a lot of questions. I have a lot of questions.
Dr. Hogarth, we are going to try to accommodate you and your
schedule. I hope you will work with ours, too, just to make
sure that we do not have to reconvene hearings and do this all
over again. At the same time I am sure other members have
questions, as well, so I am going to go with 5 minutes and then
each member go with 5 minutes of questions and then we will
just start it all over again until all the questions are asked
and all the questions are answered.
So with that, I think what I will do is Mr. Parsons, if you
can help clarify what seems to be a contradiction. You had
mentioned that nothing is discharged onto park property,
although the Army Corps states that they do discharge onto park
property. There are apparently 75 feet of stream or drainage
between the pipe outlet and the actual shore of the river that
is actually C&O property, that it does not discharge--it is not
underground apparently, under the C&O park. Can you clarify
this for me?
Mr. Parsons. I did not mean to imply that it did not
discharge onto park land. That is, there is a pipe--well, there
are seven different circumstances but in any event--
Mr. Radanovich. Because there are seven different outlets?
Mr. Parsons. Yes. One, for instance, the one we spent the
most time talking about here, comes down Little Falls Branch,
which passes through the park. There is no doubt about it. It
is not an engineering work; it is a natural stream that comes
through there or creek. But in the case of the pipes that
discharge, they are discharging into a runnel or trench as some
have called it that is about 75 feet from the Potomac.
Mr. Radanovich. So it does actually discharge into the
park?
Mr. Parsons. Yes, it does.
Mr. Radanovich. Can you clarify something for me, too? It
was my understanding that the actual bottom of the Potomac
River, is that national park property? I know C&O may not go
into there but isn't that National Park Service jurisdiction
that goes into the Potomac River itself?
Mr. Parsons. In the District of Columbia only. I guess I
should clarify that. The State of Maryland owns the bed of the
river. Unlike most rivers, it is not divided down the thread of
the stream; it is to the highwater mark in Virginia. So when
the District of Columbia was established we took from the State
of Maryland that jurisdiction, not only the District of
Columbia itself but within its boundaries the bottom of the
Potomac River.
Now it is not included in the National Park System. We
manage it as a miscellaneous property, the Interior Department.
In other words, it has never been designated as a unit of the
National Park System, the bed of the river, even though many of
the shoreline properties are under our jurisdiction.
Mr. Radanovich. Do you implement any programs on the
Potomac River because of that jurisdiction you have over it or
is it basically ignored by the National Park Service?
Mr. Parsons. What we generally do is issue permits for
construction activities, such as the Woodrow Wilson Bridge, the
various bridges that cross the Potomac and Anacostia Rivers.
The Anacostia is included in this, as well.
Mr. Radanovich. What is the relationship with the National
Park Service and the implementation of the Endangered Species
Act? Do you have a concern about that or if, for example, in
Yosemite or Yellowstone or somewhere where there was a
threatened endangered species would the National Park Service
have any concern about that or would they implement programs to
guarantee the protection of that endangered species?
Mr. Parsons. We are certainly protective of endangered
species within the boundaries of a national park, absolutely.
Mr. Radanovich. Dr. Hogarth, I want to begin some questions
for you. One, if you can, explain to me in chronological order
what consultation actually NMFS has conducted with the National
Park Service, EPA and the Army Corps of Engineers since the
listing of the sturgeon, which was in 1967.
Dr. Hogarth. I do not know if I will go back as far as you
want. I will check when I go back to the office to make sure,
but my understanding is we started basically in about 1998, as
far back as I am familiar with now, that we had consultations
with EPA on discharges. Then in January 2000 we signed a
memorandum of agreement with the EPA to improve coordination of
the Clean Water Act and ESA where we are looking at 45
pollutants that they have; we are looking at those as to how
they are affecting the aquatic life.
But now we are waiting for the EPA pollutant report and we
will continue our consultation based on the report that she
mentioned was completed in October. We will review that and, if
necessary, we will do a ``formal'' consultation and a
biological opinion. So far, there has not been a formal
consultation on this particular action that I am aware of. I
just started a few months ago so I will go back and check.
Mr. Radanovich. Can you tell me, it seems to me that there
was some disagreement about how far the shortnose sturgeon was
appearing up on the Potomac River. Some say a little further
downstream and no farther than where the Wilson Bridge is being
constructed.
Are you quite certain and can you say today that the
shortnose sturgeon is obviously up into the area of the Potomac
where the discharges are occurring and that also according to
biological surveys, the best spawning ground is upstream as far
as you can go on the Potomac until you hit some type of dam
structure or barrier, and that is exactly where the dumping is
occurring? Can you concur with that?
Dr. Hogarth. We feel very confident that at Little Falls,
for example, that would be a good habitat for spawning (based
on indications in other rivers throughout the system). We have
not documented spawning taking place at Little Falls. Shortnose
sturgeon go from Canada to Florida, basically. In looking at
habitat in other areas you would compare with this, you would
think it would be a good spawning area.
As far as fish are concerned, shortnose sturgeon
themselves, most of the sampling or most of the documentation
has been below the aqueduct, 55 miles or something below it.
There are some indications that there are a few fish in the
general vicinity.
The discharge, as I think one of the tables stated, a
discharge would potentially drive the fish back downriver, so
it depends on how the sampling is taking place and that I am
not sure of. We did develop some protocols in the last couple
of years to be used for shortnose sturgeon sampling so that we
would be consistent throughout its range, since it is
endangered. It does seem to be recovering much better in the
northern range than it is in the southern range.
Mr. Radanovich. Southern range of what?
Dr. Hogarth. Of the species, the shortnose. It seems to be
recovering much better in the Hudson and the Northern Delaware
up than it is from the Chesapeake Bay south. The recovery rate
seems to be much better.
Mr. Radanovich. I am out of time but did want to ask one
more quick question if I can before I pass on to other folks.
When an endangered species is discovered, according to law,
formal consultation needs to occur right then.
Dr. Hogarth. Right.
Mr. Radanovich. So you are saying that there has been no
consultation?
Dr. Hogarth. Basically what we did when this was listed was
that it appeared that the main problem with the shortnose
sturgeon came from recreational and commercial fishing, so we
put a prohibition on any fishing for shortnose sturgeon. It is
illegal to take any shortnose sturgeon or Atlantic sturgeon. It
appeared to us at the time that was the primary problem with
sturgeon, was the tremendous effort for the species because it
had a lot of value for caviar and this type of thing, that
there was tremendous fishing pressure and we prohibited any
fishing pressure.
Mr. Radanovich. All right, thank you very much.
Ms. Christensen?
Mrs. Christensen. Thank you, Mr. Chairman.
I guess I would direct my first question to Mr. Parsons
from the Park Service. Just clarify for me what authority the
Park Service has to control anything that is happening in the
aqueduct.
Mr. Parsons. Excuse me. Happening where?
Mrs. Christensen. Authority, does the Park Service have any
authority over the aqueduct in any way?
Mr. Parsons. Oh, not that I am aware of, no.
Mrs. Christensen. When the C&O Park was being established
were there any concerns such as this raised at that time, the
time of the establishment of the park?
Mr. Parsons. Not that would appear in any of the
congressional records. There certainly was a concern by the
State of Maryland that we would in some way prohibit taking of
water from the Potomac and others who had permits across the
C&O Canal, which is 185 miles long, and that is why the law
provided that any existing pipelines or rights would be honored
by the Park Service. We could not shut off their water.
Mrs. Christensen. Right.
Dr. Hogarth, you said something in response to the last
question from the Chairman about the difference in the recovery
periods in the Chesapeake and the Hudson, and so forth, I guess
for the sturgeon. Would the Section 7 consultation that is now
going on, would that answer some of those questions that you
might have? Or might that clarify what the difference is?
Dr. Hogarth. The results of the studies could give us an
indication of things that were impacting in the Chesapeake Bay
or particularly the Potomac River, why the population is not as
robust or not increasing to the extent you would expect it
based on other populations.
Mrs. Christensen. And that consultation will determine
where we go from here in terms of setting the regulations for
the discharges, et cetera, Miss Gleason?
Ms. Gleason. Yes, it will.
Mrs. Christensen. Mr. Gordon, I understand that there is
litigation going on at the present time over this?
Mr. Gordon. Yes, ma'am.
Mrs. Christensen. Who are the litigants? What stage is that
right now?
Mr. Gordon. As regards the Endangered Species Act, we filed
the notice of intent in October, last October over this issue
and we are now in the process of discussing discovery. We have
also filed a notice of intent regarding Clean Water Act
violations.
Mrs. Christensen. So the intent of the legislation is--what
are you seeking? What would you be seeking?
Mr. Gordon. That the law be followed, that the discharges
that harm shortnose sturgeon or their habitat be considered in
terms of the jeopardy consultation process, that biological
assessments, biological opinions be done. There is a whole host
of things. There are numerous charges we have made in our
notice of intent and our complaint that has been filed in U.S.
District Court.
Mrs. Christensen. Maybe I have not been serving on the
Committee long enough but as I listen to the testimony from
EPA, Army Corps of Engineers, National Marine Fisheries and the
Park Service--well, the Park Service really does not have too
much to do with this but it seems to me that this was a really
good example of laws being followed and agencies working in
collaboration and there is a big gap between what the agencies
said and what Mr. Gordon said.
I saw Miss Gleason taking some notes. Let me give you an
opportunity to maybe respond to some of the issues that were
raised in the other testimony. It seemed to me that the
agencies were following the law and that there was a lot of
coordination between the agencies in Section 7 but yet when I
listen to the other testimony there seemed to be a real
disconnect. Is there something that you would want to respond
to that?
Ms. Gleason. I would just like to say that we were
following the law and continue to follow the law. We have been
actively engaged for several years with the National Marine
Fisheries and Fish and Wildlife on a number of permits, water
quality standards within the District of Columbia, so they are
no strangers to us and we are very involved related with the
shortnose sturgeon and other endangered species in the District
and have actively engaged and discussed--in fact, we have
permit language in our permits in the District of Columbia that
we have issued over the last couple of years that address their
needs and concerns and actually require the permittee to submit
annual reports, including data on discharges to the services to
make sure that everyone is aware of what is going on and being
discharged in these water bodies in the District.
Mrs. Christensen. If I have time for maybe at least one
more question?
Mr. Radanovich. Sure.
Mrs. Christensen. Then I will probably come back again.
Mr. Leisch, since you fish in the area frequently, after
the discharge goes into the river and the fish move away, do
they come back?
Mr. Leisch. Yes, they will return, probably the next day or
the day after. As soon as they start dumping all fishing stops.
You may as well pack your bag and go somewhere else.
Mrs. Christensen. And you have been fishing there for a
long time?
Mr. Leisch. Over 50 years.
Mrs. Christensen. Once the discharge has moved away and the
fish come back, the fishing is as good as it has always been?
Mr. Leisch. Actually, the Potomac River has sensational
fishing almost everywhere but in that section. You can almost
call that the dead zone.
Mrs. Christensen. I think my time is up. I will perhaps
have other questions.
Mr. Radanovich. Mr. Kildee?
Mr. Kildee. Thank you, Mr. Chairman.
I address my questions to the colonel. Colonel, my son is a
captain in the Army, a Ranger, and he has worked with the Corps
of Engineers both in Korea and I think in Bosnia, doing some
things over there. So I have great respect for the Corps,
including back home.
Let me ask you this question. What alternatives have you
looked at for disposal? What do other water suppliers do to
dispose of the sludge? I ask that because we are so concerned
about the Chesapeake. I am so concerned. I have a home--of
course I live in Michigan but I have a home out in McLean,
Virginia, also, and for about 3 years I have had some solvents
and some paints that I have stored in my garage because I am
back in Michigan every weekend but my son, the captain, by the
way, was home and I had him Saturday take that small amount,
not even a truckload, not even one truckload, out to the
Fairfax County hazardous disposal site because I was so
concerned to make sure it did not get into the Potomac and into
the Chesapeake.
Have you considered alternatives and what do other water
companies do, water suppliers do with the sludge?
Col. Fiala. Sir, first off I hope your son is enjoying the
Army and finds it as exciting as I have for 22 years.
Mr. Kildee. He finds it very exciting. The two sons are
captains, by the way.
Col. Fiala. That is great, sir. It really is.
In our by-law process to go through the process of renewing
our permit we have looked at other alternatives and there are
at least two that my staff has told me that are feasible.
Now I remind the Committee that our operating costs and our
capital improvement costs come from our customers. Just because
it is operated by the Corps of Engineers, the money does not
come from the Corps of Engineers budget.
So two alternatives that we have looked at is the
construction and operation of a dewatering facility. This
dewatering facility would be built on our Dalecarlia area, our
Dalecarlia plant area. The cost we estimate at $70 million with
a $4.5 million annual operating cost.
Now I do not want to get into the debate of the
environmental impacts of that but we estimate 15 truckloads a
day of the material leaving the plant that would have to
transit out of the plant operation down there at Dalecarlia. We
also have then the issue of what to do with this material once
we cart it out from the plant. In other words, then you have to
identify a disposal area, probably a landfill someplace.
The second alternative is to move it down to Blue Plains to
be processed down there. Now those of you that know the
Washington, D.C. area know that Blue Plains is pretty close to
their maximum capacity right now with the growth of the
Washington, D.C. area, so that creates other environmental
problems and other operating problems for Blue Plains.
We are receptive to those alternatives. They come at a
cost. There is an environmental impact to those alternatives
and the process we are going through right now, in the
permitting process we are going through right now, by law,
requires us to look at all that.
Mr. Kildee. I would hope so. I would hope that you would
look at really environmentally sound alternatives. I think
having been down here in this area with my second home for 25
years, I am really concerned about the Potomac and the
Chesapeake and I think government has to set the example. I
think it is very important. We ask the private sector; we ask
even homeowners to be very careful and I am very cautious on
that. I think that government should set the example. I think
we pass the laws and those who are the government should really
even be ahead of the curve, maybe showing the latest state-of-
the-art of how to protect our environment and dispose of those
things that can be harmful to the environment. So I would
commend you that you pursue alternatives, Colonel.
Thank you very much.
Mr. Radanovich. Ms. McCollum.
Ms. McCollum. Thank you, Mr. Chairman.
To the EPA, chlorine discharges are four to five times
higher than the state standard. Is that concerning to you?
Ms. Gleason. It is concerning to us. Chlorine typically
volatilizing. It does not stay in the water. There is data that
shows that the water that is discharged meets standards in the
District of Columbia.
Ms. McCollum. It meets standards but--
Ms. Gleason. Water quality standards.
Ms. McCollum. Water quality standards but yet there is
documentation and you are aware of the fact that four to five
times the state level of chlorine is routinely discharged.
Ms. Gleason. I know some of the issues related to that are
upstream in Maryland. I know that Maryland Department of
Environment, actually, and the Corps of Engineers are talking
about that and sharing information and data.
Ms. McCollum. So we know a state law is being broken.
I ask the Park Service, sir, even though you do not have
any jurisdiction, and this is my first term on the Resources
Committee, I have noticed from reading some of the park plans
that one of the things that the park, when they are going
through their redevelopment or any changes that they are making
at all, they talk about the appearance, preserving appearance,
having the visitor have something that is pleasing to the eye.
Looking at these photographs and hearing the smell
described, do you think that the Park Service is being well
served by the appearance of this particular part of the stream,
river?
Mr. Parsons. That is a very difficult, good question. Many
of these discharges are used so infrequently, annually, for
instance, that there is little residue or impact once the
discharge has occurred.
So visitors--I call your attention to the culvert over
there with the redbud in the picture. That is Little Falls
Branch. The people walking along the canal then walk along that
piped railing and during a discharge I am sure that it is not--
I have never seen one myself--it is not something aesthetically
that the visitors would enjoy, to get to your point.
So we have never addressed that on the C&O Canal as to the
impact on the visitors of the intermittent discharges that
occur in this park.
Ms. McCollum. But if you were to be putting together a
reupdate of the visitors' comments and all, that would be
something that--I would assume that we would hear a lot of
testimony about that if you were doing a visitors park
reapplication permit?
Mr. Parsons. Yes.
Ms. McCollum. To the Army Corps, why do you dump at night?
Col. Fiala. There are a couple of reasons for that. Number
one, we are not hiding anything. Despite what the newspaper
says--
Ms. McCollum. I have not read the newspaper. I am just
asking a question.
Col. Fiala. There is that accusation in the newspapers.
We dump or we discharge the sediment based on the highwater
flows in the Potomac. Sometimes that is at night. Sometimes
that is during the day. It is a 12- to 16-hour operation. We
typically like to start that operation at night so that when
daybreak comes it is a little bit easier to finish cleaning out
the basins. I put our government employees down into the basins
to clean them out and there are some safety issues there. I
would rather be doing that final clean-up during the day than
at night.
In addition, because of how quickly the discharge
dissipates in the Potomac River, if we are able to dump at
night, by the time daybreak comes dissipation is away and we
are impacting very little the fishing that goes on out there.
So that is why we do that. Sometimes we will start the
discharge during the day, sometimes in the evening hours.
Ms. McCollum. Mr. Chairman, just a quick follow-up.
So you admit that it impacts the fishing. Those were your
words. So you are less likely to impact fishing and maybe a
visitor's enjoyment by discharging at night. So in other words,
there is a problem with fishing. There is a problem with, if I
am a visitor who is visiting that area and I hit it during a
discharge, I am more likely if you discharge during the night
than during the day to have a better aesthetic adventure at the
park, correct?
Col. Fiala. Let me clarify when I say we impact fishing.
You heard several testimonies here that talk about the fish
that are in and around these areas. Our discharge temporarily
provides a very minor impact to the fishing. And our studies,
our water quality studies, both in the '93 study and the study
we just finished up here in October lay that out
scientifically. So it is temporary and it is very minor in
nature.
Ms. McCollum. Mr. Chairman, but if I am fishing that day
and I have a brown root beer foam, I am not very likely to put
my boat in the water. Thank you, Mr. Chairman.
Mr. Radanovich. Thank you, Ms. McCollum.
Dr. Hogarth, I have a question regarding the sturgeon and I
want to get your opinion on this. Do you think that sediment
dumping is negatively affecting the recovery of the sturgeon? I
think in your previous testimony you had mentioned that it is
done in the presence and that sturgeon are still present but we
are talking about a listed endangered species where it is NMFS'
responsibility to make sure that they recover. Do you think the
sediment dumping is affecting the recovery of the endangered
sturgeon?
Dr. Hogarth. But I do not think we have enough data to
support or refute that. We do think that if they are in the
area, they would probably be moved out of that area during the
discharge time. They would leave the area.
Mr. Radanovich. Do you realize how that does not incredibly
fly anywhere else in the United States of America, that
statement? When you are charged with habitat protection of the
endangered species, you can say well, the fish disappear when
you dump into their habitat? It is your job to make sure that
the recovery of the species is guaranteed and anything that
affects the recovery of that species has to be stopped at all
cost. That is the way the law reads.
Dr. Hogarth. That is correct.
Mr. Radanovich. So you cannot say the fish are okay because
when we dump they leave. You are violating the law when you
talk like that.
Dr. Hogarth. What we have said is we have not been able to
document fish in the area of the discharge, since the evidence
in the early 1800's or late 1800's, but since 1996 we have seen
some in the Potomac River but not in the vicinity of the
discharge.
Mr. Radanovich. So the species was listed in 1967 and in
1983 you were given a permit to dump into the river. At that
time formal consultation is required. To my knowledge there has
been absolutely no formal consultation on the species since
1983. Why is that? I mean these are answers that you should
have had 20 years ago.
Dr. Hogarth. You have a good point. We are doing the
consultation at this time. That is why we asked for the
studies. Based on this consultation, we will decide if we
believe that the discharge is impacting the sturgeon. Then we
will take appropriate action and a biological opinion, if we
feel we have to do a formal consultation based on the data that
we get from the studies that were just undertaken.
Mr. Radanovich. When might you have that data?
Dr. Hogarth. The report, they finished in October. It was
submitted to us in the last few days. We have not received the
report yet from EPA.
Mr. Radanovich. Thank you.
Mrs. Gleason, in a letter to the EPA expressing concerns
about ending the discharges of sludge from the facility, the
Corps officially states that the material would have to be
picked up at Dalecarlia and trucked to any suitable site we
might obtain. Due to local restrictions on various roadways in
the area, these trucks would have to go south on leaving the
plant, requiring them to travel through high-density, ``high-
value areas'' of D.C.
There is a real concern about trucking sediments through a
residential community, in my opinion, that has high value as
opposed to low income. Is it not acceptable Corps practice to
alter these policies based on the affluence of the area?
Ms. Gleason. Let me step back for a minute. We were in the
process during the time that those letters were written,
probably in '96, '97, '98, of making a determination and trying
to find out if the sediment is charged with having an impact on
the river, so it was premature to even get into any debates
about trucking. There were issues that the residents were
raising relative to trucks because they were concerned. We knew
the issues of the fishermen. We knew the issues of the
services. We were trying to sort out through scientific data,
through these studies, whether indeed the sediments could
continue to be discharged the way they were or discharged in a
different manner, whether they were a problem or not.
Mr. Radanovich. So would it have been done in a different
manner had this been a low-income neighborhood as opposed to a
high-income neighborhood? Why was there even a mention of a
high-value neighborhood?
Ms. Gleason. People write letters with all sorts of things
in it to us.
Mr. Radanovich. Is it EPA's practice to discharge in a
different manner in a low-income neighborhood than a high-
income neighborhood?
Ms. Gleason. When I mentioned different manner I meant if
there were any ways that the current discharge could be,
instead of in a certain time frame, over a longer period of
time, whether that would help the recovery that NMFS was
speaking about, whether Fish and Wildlife were interested
certainly in enhancing the Potomac River.
Sediments in the Potomac are an issue for the entire
Potomac. There are sediments in the river coming from the
Maryland portions of the Potomac, from West Virginia. There are
deforestation issues. We are trying to take a full watershed
approach and deal with the entire sediment issue.
The Chesapeake Bay is definitely impacted by sediments. The
aqueduct pulls sediments into its plant from the Potomac. They
do not create these sediments. They do add alum; we know that.
We have done studies that were just completed that show that
there is no impact, as far as we can determine scientifically
at this point, of the alum in the river. We are trying to take
a large watershed approach and draw in other groups to solve
the overall sediment problem in the Potomac.
Mr. Radanovich. I am out of time but if I could ask--
Mrs. Christensen. Of course, Mr. Chairman.
Mr. Radanovich. Thank you, Ms. Christensen.
A water quality study in the vicinity of the Washington
Aqueduct that was prepared by the Army Corps of Engineers
states that the primary risk from deposition of suspended
sediment on eggs and larvae of the endangered species would
greatly affect its survival. So it is the deposition of
suspended particles.
Whether it is perfectly legal to draw water out of a dirty
river and clean it up and put the dirt back into the river, I
do not argue with that, but this practice is in direct
violation of the Endangered Species Act and recover of an
endangered species that you have known is there since 1967.
That is the problem that I have and I think that you have known
about this. Apparently it is in the study, the study has been
released, and there has unfortunately been no enforcement of
that act.
With that, I will switch to Mrs. Christensen.
Mrs. Christensen. I probably just have a couple of
questions. I guess to Colonel Fiala, what occasioned the Army
Corps to start looking at other alternatives? Why did you start
pursuing other alternatives?
Col. Fiala. Why did we? We are always working at the
aqueduct to figure out how to provide better service in a cost-
effective manner and in line with our permits that we have to
operate. We have, as I testified before, we have produced two
different studies on water quality and as we work toward a new
permit or a draft permit that the EPA will issue, that will
drive the debate on other alternatives. That debate will be
open, it will be open to the public, and it will be in
accordance with the law. It will be a process that we will
consult with the other Federal agencies and any other
stakeholders and players in the region.
Mrs. Christensen. You indicated that it would be about $4.5
million operating costs annually. What is the operating cost of
what you are doing now?
Col. Fiala. Ma'am, that is $27 million right now. $27
million a year is our operating budget annually.
Mrs. Christensen. I see. Well, I guess the other question I
would ask is how would you pay for a new facility if that was
the alternative, the $70 million facility, if that was the
alternative that you chose?
Col. Fiala. We have to go to our customers and work an
agreement to create a capital fund, like we are doing right
now. We are currently upgrading certain parts of the aqueduct
operation right now through a capital fund. So we would go to
our customers and work their rates or work some other financial
arrangement to construct the dewatering plant.
Mrs. Christensen. I guess my last question would be to Miss
Gleason, Dr. Hogarth and Mr. Parsons. Do you consider the
present arrangement workable or would you prefer to see an
alternative put in place? Is this workable? Do you consider
what is being done now the optimal way of dealing with the
situation or would you yourselves recommend that we look for an
alternative way?
Mr. Parsons. I am not sure I am qualified to answer that.
On the one hand it is an aesthetic issue and on the second, it
is a cost factor.
There is one point--I would like to take this opportunity
just to clarify one thing. There has been some testimony today
that the discharge smells like sewage and I will fess up to
another problem on the C&O Canal. We have a 96-inch sewer line
that comes from Dulles Airport. It was put into the canal in
the 1960's and has vents in this area. I am certain that if
there is any concern about that, that is its source, certainly
not the discharge that comes from the Dalecarlia Reservoir.
Dr. Hogarth. Well, just to clarify one thing, we have only
seen four shortnose sturgeon in the Potomac River between 1996
and the year 2000. We have seen others in the Chesapeake Bay
throughout its range. We are not sure, due to the timing of
when the research took place. We issued about 41 research and
enhancement permits since 1992 to look at shortnose sturgeon
enhancement activities up and down the coast. We will have to
look at the data that the EPA sends us and determine if it is
having an impact. Then what we would do is in the biological
opinion we give, what is called reasonable prudent
alternatives. We would talk about not having the discharge
during certain times when the fish migrate into the river to
make sure it is not, or if the eggs are in the river, to make
sure of that.
So we would look at it from the standpoint of the impact on
the various life stages and when they migrate in. We would have
to look at that data. But under the ESA we have no choice but
to make a determination on what is best for the shortnose
sturgeon and that is what we will do when we review this data
and do the biological opinion.
Mrs. Christensen. Miss Gleason?
Ms. Gleason. We are at a point now, since the study has
just been completed, that we are looking for various options.
We are developing them to address the concerns that we are
aware of, the concerns that the study points to, as well as the
concerns that the other agencies and the public have. So we are
drafting a permit and it will be out for public comment by the
end of this calendar year.
Mrs. Christensen. If I could just ask one more question, it
should be a real short answer.
Mr. Radanovich. Sure.
Mrs. Christensen. You in your testimony said and the
Chairman raised the issue again of the sediment and the
possibility of smothering the spawning of the fish. Have you
looked at that sediment and if you have, is the make-up of the
sediment suggestive that it is just coming from the discharge
or is it a mix?
Ms. Gleason. Through this recently completed study there
was a lot of modeling done that looked at the river natural
conditions, as well as the discharge, where the solids go, how
it migrates, what is deposited and what size, where. So we have
probably the best data that we have ever had in the Potomac of
how the solids in the river naturally move and how they move
during these discharge periods. So I think we will have some
really good information to evaluate our options.
Mrs. Christensen. So you do not know now but you will know
based on the studies that you are doing and the information
that you have
Ms. Gleason. The studies are completed. We are going
through them right now. We are doing some overlays with
submerged aquatic vegetation and seeing if there is any line-up
with deposition patterns of the solids in the river.
Mrs. Christensen. Thank you, Mr. Chairman. It has been a
very informative hearing. I am still not sure. We do not have
much jurisdiction over any of the agencies here but it has been
an informative hearing.
Mr. Radanovich. Thank you, Ms. Christensen.
Dr. Hogarth, I am aware that you are going to need to take
off and just have one more question. And I want to thank you,
even though the testimony is not some of the most pleasant
stuff, I think.
In 1997 there was a flood in California and a levee broke
and killed three people. What makes it, I think, relevant to
this hearing is the fact that it happened to be the habitat of
the elderberry longhorn beetle. The habitat on the levee was
that. So they had to go through NMFS, go through a 6-year
process to get permission to go and repair a weakened levee,
even though they knew it was weakened for 6 years, and
apparently did not get it in time for the flood. The flood
happened and the levee broke and three people died. It was the
habitat of the elderberry longhorn beetle. There was no
evidence that it was present.
In the Klamath River Basin, as you know, the water is being
shut off to a whole valley of farmers up there, 1,200 of them
because of the presence of some sucker fish--I am not even sure
what the biological name is--not that it is present but it is
the habitat of one that is known to be an endangered species.
Why is that not the case here? You know that there is an
endangered shortnose sturgeon on the Potomac. You know that
that is the habitat of that and may very well be the ideal and
probably only breeding ground. Why is it that you can shut--
that NMFS or the U.S. government can allow these things to
happen--people die, farmers go bankrupt--and yet when it
happens here, what is your explanation for why that has not
happened here?
Dr. Hogarth. I think here several things--the different
behavior of different species. The sucker is more of a
stationary animal. It stays in the area. It does not migrate
great distances. Shortnose sturgeon, as we said, is an
anadromous species that will spend a great deal of its life in
the lower reaches, in the ocean, in the saltwater and goes up
to freshwater. It will go great distances, 130 miles, to spawn.
That is why we lack the information to see the distance it is
migrating up the river, so what impact it would have.
Is it spawning in the Potomac River, based on four fish? We
do not have the information that we have on the others. We have
a lot better information, for example, on salmon on the West
Coast, their patterns and all, than we have here on the
Potomac.
Now the Potomac has improved tremendously in the last 20 or
30 years. I worked on it, in fact, back in the 1970's when I
was in graduate school. We found virtually nothing in the
Potomac except white perch and there has been a great clean-up
campaign.
I am not saying that we do not have a problem with
shortnose. I am saying we have to go through this consultation.
We stopped what we thought were the activities that were
impacting sturgeon. It has worked, it seems, everywhere except
in the Potomac River and we do not have a lot of information to
say what level was the population in the Potomac to begin with.
Now we have to focus in on chlorine in the discharge to see,
since we are recovering it in other areas, if that may be
something that is happening here. That is why we will use the
consultation process very carefully to look at the Potomac
River, the impacts.
Mr. Radanovich. But you know that that area of the Potomac
is the habitat of a listed species, the endangered shortnose
sturgeon, correct? You know that that is the habitat.
Dr. Hogarth. Yes, Little Falls, we feel like is the similar
habitat of the shortnose sturgeon that is in other rivers, yes,
sir.
Mr. Radanovich. And the law reads that if you know that
that is the habitat of a shortnose sturgeon, you are obligated
to protect that habitat at any cost. That is the way the law
reads.
Dr. Hogarth. Yes, we have said similar habitat but we do
not have any data that shows the presence of it in that area.
Mr. Radanovich. You do not need data. You have the presence
of the endangered species in that area.
Dr. Hogarth. That is correct.
Mr. Radanovich. You know that is the habitat and you have
selectively enforced the Endangered Species Act. At least in
California you have done it to the extreme. Here you have
completely ignored the law for almost 30 years, probably more.
Thank you for coming. I do appreciate you being here. If
you need to go, I wish the others would stay because I still
want to--
Dr. Hogarth. In closing, I do appreciate it because I do
have another hearing at CEQ. As I said, I just started in this
job in this administration about 2 months ago. We will look at
this very carefully, as we do all consultations. There is no
selective enforcement or implementation of ESA.
Mr. Radanovich. Oh, there is. There is, sir.
Dr. Hogarth. I try not to.
Mr. Radanovich. That law, I think the evidence clearly
shows it today. But thank you very much for being here.
Dr. Hogarth. Thank you.
Mr. Radanovich. Mr. Gordon, would you care to recreate this
scene in an ideal situation since 1967, since the appearance of
an Endangered Species and explain to me how things maybe should
have happened and what should have been allowed, maybe what
should not have been allowed?
Mr. Gordon. Yes, sir. I think it is quite simple. The law
says if a species may be present, then if there is a government
action going on in that area that may affect it, you must do a
biological assessment. These discharges constitute an action
that is going into habitat that Federal biologists have
determined is the primary, if not only, spawning ground of the
endangered shortnose sturgeon, yet no biological assessment has
been done.
Mr. Radanovich. When should that biological assessment
should have occurred?
Mr. Gordon. I would argue that at least they should have
started the process back in 1996 when the first specimen turned
up in the river, which brings up another important question.
You have heard that gee, there were only four and we have
looked for these fish, according to the National Marine
Fisheries Service, but we cannot identify whether they are in
the Upper Potomac or not and the four we found were downriver.
The four that were found were caught by commercial
fishermen, not by the National Marine Fisheries Service or the
Fish and Wildlife Service, and they were brought in through a
reward program. The fact of the matter is, however, that
commercial fishing is illegal in the District of Columbia so
you would not turn up any in D.C. waters.
Additionally, back in 1999 the National Marine Fisheries
Service stated that there was going to be an assessment done to
determine the presence of the shortnose sturgeon in the Upper
Potomac and stated that this assessment would be critical to
their assessment of the presence of the fish in the river. That
assessment has never been done. So when you hear today that
gee, we are not sure if it is there or not, the reason people
are not sure if it is there or not is basically hiding behind
studies that have not been done that should have been done.
Additionally, there is substantial anecdotal information and
historical information that would indicate that this species is
present.
If I could, I would like to address several things that
have been said that are just not accurate. First, I have been
down there. I took that photograph of the discharge and that
location is nowhere near the sewer line. The sewer line runs
along the C&O Canal itself and this is hundreds of yards from
it. And I have smelled it there; it is not from sewage.
Secondly, I am sad that Ms. McCollum left because I think
there are some questions that she raised that were important,
one being does the Park Service have some authority over some
of these things?
The discharges into Little Falls Branch of chlorine that
exceeded Maryland state standards are into the national park.
Little Falls Branch is in the national park and the Park
Service has an obligation to protect the park resources.
And as concerns chlorine there are numerous problems I
would like to just bring up. On October 9 of this year the
Corps received a letter from the D.C. Department of
Environmental Health Administration that states the following.
``It is our understanding that the final step in the process is
the use of finished potable water to flush the remaining
solids. If finished water is used in the flushing process, the
discharge contains chlorine, presently in the form of
chloramine used in the disinfection process. The existing NPDES
permit--that is Clean Water Act permit--for the two reservoirs
contains no provision for the discharge of chlorine in any
form. We are requesting that you immediately initiative action
to ensure that no chlorine is discharged in the Potomac
River.'' So there is a serious concern about that.
Additionally, I believe Colonel Fiala said that any harm
that is done from their discharges is temporary and I would beg
to differ. The report that the Corps produced, given the most
favorable reading, says that it may pose a moderate risk to the
survival of a species of concern, and that is the deposition of
the sediments with alum, which has some toxicity to fish eggs
and larva. That is the report's conclusion and the report
actually recommends suspending discharges for 4 months of the
year, which is not quite as significant a recommendation as the
panel put together and sponsored by the EPA. Their number one
recommendation was to terminate discharges. This panel was
composed of representatives from the Fish and Wildlife Service,
the National Marine Fisheries Service, Maryland Department of
the Environment, D.C. Fisheries and the Potomac Commission.
Now just two other things if you will bear with me but I
have been sitting here listening to these things and I wanted
to address them. I would like to just read one sentence from a
letter from the former chief of the aqueduct that states, ``We
would like to discharge the basins at night to minimize the
impact on any river activities.'' So I think it is fairly
straightforward why the discharges occur at night.
And finally, Mrs. Christensen asked a question about
sediment and whether it was the sediment from the discharges or
the sediment that was naturally occurring in the river that
actually affected the fish. The study that was done by the
Corps mapped and measured specifically those sediments that
come from the discharges and the recommendation that the
discharges be terminated for 4 months of the year and the
statement that these discharges pose a moderate risk to the
survival of species of concern is based specifically on these
sediments, the chemically treated sediments and the alum that
comes with them that is discharged by the Corps, not the
ambient sediments in the river.
Mr. Radanovich. Thank you.
Col. Fiala, I want to ask you a question. Just so you know,
my big concern is that I think the Endangered Species Act is
poorly written and because of that, it is being subjectively
implemented all across the United States. It is my opinion that
if the ESA was enforced in urban areas the way it is enforced
in rural America where we do not have the votes to change it in
the Congress, people would not tolerate it.
I have an instance in my part of the country in California
where they are trying to site a tenth campus for the University
of California. It has been designated in a place called Merced,
California. They have gone through a site selection process and
they have identified a nice site. It is at the base of the
Sierra foothills at an elevation of about 1,000 feet and it is
rolling terrain. Of course, when the rainy season hits in
California the water table fills up and there are little
enclaves of water that are there until the dry season comes and
basically they drain off. They have been given this name of
vernal pools and in them is a listed species by the name of a
ferry shrimp.
The reason I bring this up is because you had mentioned
previously in your testimony that there have to be
environmental consequences on the decisions that you make with
regard to, in this instance, the dumping into the Potomac,
where in this instance in UC-Merced that is not, at least
according to the law and at least according to the way that
they are implementing the Endangered Species Act in that case,
there is absolutely to be zero consequence to the environment,
and all else must wrap itself around that, which provides a
contrast to the way that this is being handled, the dumping of
the sediment into the Potomac River and your statement that
there are environmental consequences.
Is that the way you view your implementation of the
Endangered Species Act?
Col. Fiala. Sir, in this case specifically, the Washington
Aqueduct and the Corps of Engineers are an applicant to the EPA
for its discharges. Therefore I would defer that question to
the EPA and would caution that we are getting close to some
issues that Federal agencies before you are in litigation over,
so I want to make sure we know the limits as to--
Mr. Radanovich. Maybe you can answer a general question for
me. Then do you believe in the implementation of the Endangered
Species Act? The law reads that if an endangered species is
discovered that the species itself and the habitat must be
protected at all cost, period. Do you believe that that is the
case? Because you are charged with implementing the Endangered
Species Act. Do you believe that or not?
Col. Fiala. We are operating under the rules and
regulations and the laws of our government. We have a permit.
We have asked for renewal of that permit. There is a process
for that permit renewal; we are following that process. We have
been asked through our permitting process to provide studies on
water quality; we have done that in two separate occasions. We
have brought good science and engineering to this debate and we
feel in the consultation process that is on-going with EPA and
our other Federal agencies here that we will come to a solution
that the Washington Aqueduct will move out sharply and execute.
Mr. Radanovich. Then in your opinion, there are
environmental consequences to the actions that you take. Is
that what you sought in the permit that you received from the
EPA or were you seeking strict enforcement?
I understand that you are under permit from the EPA but
your testimony says that there are environmental consequences
to every action that you take when you need to enforce it, and
that is not according to the law basically in the Endangered
Species Act. You certainly must have a concern about that
because you are charged with enforcing the Endangered Species
Act in this case and yet you are being permitted by the EPA not
to, basically.
Col. Fiala. We are under the consultation process under the
Endangered Species Act and study is part of that and we are
working toward a solution under the law, under the Endangered
Species Act, so we are following the letter of the law.
Mr. Radanovich. Okay.
Mr. Gordon, did you have the opportunity to read the
October 4, 2001 report prepared by the Army Corps of Engineers
entitled ``Water Quality Studies in the Vicinity of the
Washington Aqueduct''? If so, can you give me some of your
opinions on its conclusions?
Mr. Gordon. Yes, sir. I have reviewed it and we have
toxicologists and chemists and such reviewing it at this time,
as well. We found that there were a lot of missing elements and
lacking elements, that the breadth of the study was not really
quite sufficient and that a lot of the conclusions drawn from
the study were not supported by the data it contains.
Let me give you a few examples of things that struck me
particularly strange. When you hear testimony today that the
discharges are not particularly toxic, we compared the
concentration of, for example, total suspended solids that they
used to test the toxicity with the historical average of the
total suspended solids discharged by the facility and you will
find that more than 85 percent of the discharges from the
Washington Aqueduct have a maximum total suspended solids that
exceeded the test concentration at which the report found
chronic growth toxicity to aquatic invertebrates and that some
of those exceeded the toxicity level by as much as 3 times;
about 30% of them; so quite significant.
This graph over here shows basically the total suspended
solids level in different discharges from the aqueduct from the
reports that the aqueduct submits to the EPA and those are
ranked from highest to lowest since 1992, discharges above
Chain Bridge, and the yellow lines are the level of the solids
in the effluent samples used to measure toxicity and you can
see that they are well below the average of the total suspended
solids included in the effluent.
There are numerous other problems with the study. The study
was supposed to incorporate a study on striped bass, given that
they are more sensitive. Those studies failed. There was
supposed to be an aspect of it to determine the density and
diversity of aquatic invertebrates. That did not generate
reliable data because the devices filled up with too much
sediment.
The discharge point studied at that outfall that is
indicated by that chart, the samples were actually taken 520
meters downstream. The notion presented was that the river is
too narrow there and it is somewhat dangerous. Sometimes that
is true but I can tell you I was there 2 weeks ago at that
outfall and you could reach around the rocks and find sediment
that is clearly this kind of stuff because it had the same
gelatinous consistency to it, that was several inches deep.
The plume modeling for the sedimentation used an estimated
concentration of 10,000 milligrams per liter to determine how
much sediment accumulation there would be. Well, clearly many,
many of the discharges from the aqueduct occur at levels way
above that.
Those are just a few of the problems and there are many.
But even given that, you find that this report itself concludes
that the discharges should be discontinued at least during the
spawning season and that actually the discharges from one of
the outfalls was toxic enough that it would require extending
the pipe 200 feet further into the river to dilute it to the
point where it no longer would be toxic.
I think those things are all significantly different than
the notion that has been presented to you here today that gee,
there is not really any problem with them; they are not too
toxic, they are not that bad for fish; maybe there is a minor
risk from sedimentation or whatever risk is presented goes away
after we discharge. That notion cannot be backed up by this
study and is absolutely contrary to empirical, real-world
experience. All the fishermen that go there will tell you that
fish disappear, that the beds are affected by sedimentation,
that the creeks that flow through the park, particularly Little
Falls Branch, are devoid of life below the discharge point. So
I do not place a lot of credence in the study.
Mr. Radanovich. Okay, thank you very much.
Miss Gleason, I have a number of questions that I would
like to get on the record, if I could. Would you please clarify
for me why the EPA continues--there seems to be an issue on the
permit--why the EPA continues to allow the Corps to go forward
with the dumping when it stated on the record that it would not
extend the permit for a period of more than 6 months?
Apparently EPA has gone on record that you would not allow the
dumping and because of that, would not extend the permit for
more than 6 months.
Ms. Gleason. I am not quite sure what that means, Mr.
Chairman. Perhaps you might be referencing the spawning period
in the river that is about a four- to 5-month period?
Mr. Radanovich. This was in reference to a memo on April 4,
1996. It says, ``We cannot, however, delay indefinitely and
anticipate issuing the draft permit no later than the end of
the fiscal year,'' which was at the end of 1996, and yet the
permit has been reissued. This was stated in an EPA memorandum
to Congressman Jim Moran where it stated in here that you would
not extend the permit based on the dumping and yet you have
extended the permit in addition to that. It is a contradiction
and EPA stands on the issue, I think.
Ms. Gleason. The permit, once it expired in '94 since the
Corps had submitted a timely reapplication, the permit under
law administratively extends indefinitely until EPA issues a
renewed permit.
I am not sure. I would have to get back to you on that
letter. I am not quite sure.
Mr. Radanovich. Okay, we can certainly provide you with a
copy. It was an April 4 letter written by W. Michael McCade,
the regional administrator, to Congressman Jim Moran, which
basically said you are not going to allow this to continue for
the end of the fiscal year, which was--
Ms. Gleason. I would have to read the context. I am not
quite sure.
Mr. Radanovich. We are happy to provide you with it.
Are there no limits for alums or solids or irons on the
Corps' Washington Aqueduct permit? Do you have ceilings set for
those types of discharges?
Ms. Gleason. No, there are no limits. Monitoring only.
Mr. Radanovich. Why is that if you are concerned about
habitat for endangered species, that you have not set limits
for toxic elements of discharge into the river?
Ms. Gleason. It would be the 1989 permit. When that was
written it was not thought at the time that limits were
appropriate. There were no impacts known at that time, based on
the record that we have on the issuance of that '89 permit. So
you would not put limits in a permit if you did not need them.
Mr. Radanovich. Even though there was habitat for
endangered species present?
Ms. Gleason. We were not aware of that at the time.
Mr. Radanovich. It has been listed since 1967 but you were
not aware of it?
Ms. Gleason. We were not aware that there was habitat that
was considered critical habitat under the ESA.
Mr. Radanovich. Are there any limits on any permits that
you issue?
Ms. Gleason. Oh, absolutely.
Mr. Radanovich. But no limits on this one?
Ms. Gleason. No.
Mr. Radanovich. This is an unlimited permit, basically.
Could you please name for me any other water treatment
facility in the United States that discharged chemically
treated water into National Park and National Heritage rivers?
Are you aware of any?
Ms. Gleason. I can tell you other facilities around the
country that have similar discharges--
Mr. Radanovich. Into National Parks or Heritage rivers?
Ms. Gleason. I am not sure if--I would think that maybe
some of the properties that they cross over, considering there
are discharges into the Missouri and Mississippi Rivers. I
would think there are some parklands, whether they are state
parks or national parks. I would have to get back to you on
that, particularly where the pipes cross, but there are other
facilities around the country that discharge similar to the
aqueduct.
Mr. Radanovich. Are there discharges into rivers where
there are known endangered species that require formal
consultation?
Ms. Gleason. Around the country?
Mr. Radanovich. Yes.
Ms. Gleason. I am not aware of whether there are any
endangered or listed species. I would have to get back to you
on that.
Mr. Radanovich. Okay, thank you.
Mr. Parsons, if you can answer to me if you know that they
are discharging actually into the C&O National Park, cannot you
just say no? Is it not within the National Park Service's
authority to say you cannot do this anymore? Do you have the
power to stop this?
Mr. Parsons. Not that I am aware of.
Mr. Radanovich. Would you have it in any other park, do you
think? Is it because it is the C&O Canal National Park or do
you not have the authority as the superintendent there?
Mr. Parsons. I do not see that we have the authority to do
that. Little Falls Branch is a natural stream that we happen to
have intruded on by passing over it with a canal. It is not as
though we are managing a lake below that has swimming or
something that is part of our resource. I am not sure we have
any authority to do that.
Mr. Radanovich. I just do not understand because if there
was chlorine being dumped into the Little Yosemite Creek that
runs over Yosemite Falls do you think that the Park Service
might have the authority to stop that?
Mr. Parsons. I do not know. I can certainly research this
and get back to the Committee.
Mr. Radanovich. Interesting.
Mr. Parsons, do you believe that the Army Corps' actions,
specifically the discharge of sludge into the canal, does it
impair park resources at all or the visitor's experience? Can
you answer that question for me?
Mr. Parsons. Well, our limited understanding of this is if
it is an impairment, it would be visual. That is, we have not
found any evidence that there is any impairment to resources or
species in the park.
Mr. Radanovich. But apparently there has been a Park
Service official that has filed a number of reports regarding
the discharge of sludge from the canal into the park. What
action has been taken to address these reports? I mean it is
obvious that an officer within the National Park Service has
filed reports saying that this is--the Park Service sign says
``Please report any listed activities on National Park Service
properties,'' and one of those includes dumping of water waste.
That is part of the charge of the National Park Service and yet
you think it does not impair the visitor experience in this
national park or does not cause disruption to the visitors
there?
Mr. Parsons. Well, I am not familiar with the reports that
you are speaking of. My expertise goes to land resources, not
the operational side of things. But I will certainly talk with
our superintendent, Mr. Ferris, to see if those reports have
been made available to him.
Mr. Radanovich. But I think those reports were filed to him
so you might want to check and see.
Mr. Parsons. I will, absolutely.
Mr. Radanovich. Because the person filing the reports was
just doing his job, as required of a National Park Service
employee.
Mrs. Christensen, did you have any other questions?
Mrs. Christensen. No.
Mr. Gordon. Mr. Chairman, I would like, if I could, to just
offer something else on that point as regards effects on the
national park and the reports.
National Park Service police officers have filed several
reports and I would like to read just a paragraph from a
report, a follow-up report produced by the EPA regarding their
visit with one of the National Park Service police officers
following his report.
It states, ``On January 30, 1999 Chris Lay, a Park Service
employee, saw a discharge along the Potomac shoreline in the
District of Columbia. The discharge was described as black,
foul-smelling and coming five feet up in the drainage channel.
The channel runs approximately 30 feet to the river. As the
flow subsided there were dead eels in the channel bed and
fishermen in the area observed dead fish in the river. Officer
Critchfield visited the same location a couple of days later
and saw soap suds coming out of the same pipe. A call to Woody
Peterson, representative of the Washington Aqueduct, confirmed
that the Georgetown Basin was dumped at about the time that
Chris Lay made his observations. Due to the recent drought in
the Potomac watershed, the solids were held in the basin 11
months instead of the normal 4 months. Since the solids are
under anaerobic conditions, this would probably account for the
noxious odor of the discharge. Mr. Peterson also confirmed that
soap suds may have discharged from the pipe as they use a
cleaner after flushing the solids from the basin.''
Officer Critchfield then took the EPA official to the
location that is permitted under the Maryland Department of
Environment known as outfall 5 and it has been mentioned
several times today as regards chlorine going into Little Falls
Branch. It says that Officer Critchfield showed the inspector
this discharge and then it says, ``The area was fenced off and
drops down about 50 feet. The estimated flow was 100 gallons
per minute. According to the Park Police officer, this
discharge is always flowing whenever he comes by this location.
The location, as shown on picture 4, had a strong smell of
chlorine from a distance of about 50 feet above the
discharge.''
Mr. Radanovich. Thank you, Mr. Gordon.
One final question for Col. Fiala, if you would. You have
stated that the chlorinated water is used to wash out the
basins and in your testimony you stated that the chlorine is
effectively used up.
What measurements do you have to validate this conclusion?
And if so, why did the D.C. Environmental Health Administration
state in a letter dated October 9, 2001 that the discharge
contains chlorine and demand that immediate action be taken to
ensure that no chlorine is discharged?
Col. Fiala. We operate under a permit, so therefore we have
no responsibility to sample the discharge. However, the science
will tell you that chlorinated water very quickly gives up its
chlorine residue when it becomes volatized as it strikes a wall
or strikes a basin.
In addition, the organic matter that is contained in the
sediment will react very quickly with the chlorine material
that is in the finished water and consume it well before that
sediment is discharged into the Potomac River.
Mr. Radanovich. Are you aware of any aquatic life in the
stream below the discharge? To my knowledge, everything is dead
beyond that point where the chlorine enters the discharge
point.
Col. Fiala. I am not aware of it.
Mr. Radanovich. I think it is.
You also mentioned that the chlorine discharge occurs every
five to 6 years. I do not expect you to have this answer for me
right away but if you can let me know if it did occur on
Friday, October 19, I would appreciate knowing that.
Col. Fiala. We will provide that.
Mr. Radanovich. Thank you.
Mr. Gordon. Mr. Chairman, on the chlorine I would just note
that on the Corps' website it had a discussion of the
conversion from chlorine to chloramine, which took place a few
years ago and the website stated, ``Unlike chlorine,
chloramines do not dissipate in the atmosphere by standing or
aerating.''
And then the notice went on to tell people that you needed
to take specific treatment steps. You could not just depend on
volatilization of the chlorine when it is discharged. In fact,
there was enough of a concern about this that every single
customer, at least in Arlington but I believe in other
jurisdictions, was sent a notice by the wholesale customers of
the aqueduct not to add the water produced by the aqueduct to
their fish tank because it was harmful to fish.
Mr. Radanovich. Miss Gleason, Col. Fiala stated that the
testing requirement was not in the permit that was issued. Why
not?
Ms. Gleason. In 1989 there was not a concern. People were
not concerned about that. They were using chlorine at that
time. They have recently switched to chloramine.
Mr. Radanovich. Okay. Thank you very much. It has been an
illuminating hearing. I do have a concern about the environment
but I have to tell you, if the ESA was implemented in my area
of the state there would be people alive and there would be
probably more jobs.
I appreciate the testimony of everybody here and your
appearance here but I think that on the Supreme Court it says
equal application of the law and right here in the beltway
there seems to be pretty much disregard for the Endangered
Species Act and I think it is evidenced by the testimony here
today. I hope some day that it can be taken care of
legislatively, if not administratively.
But I do appreciate your being here and to the members of
the panel, as well, and this hearing is closed. Thank you.
[Whereupon, at 12:07 p.m., the Subcommittee adjourned.]
[The following letters were submitted for the record:]
1. A Letter from the Department of the Army.
2. A Letter from the Environmental Protection Agency.
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