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80-271 PS 2002

THE WASHINGTON AQUEDUCT

AND THE EFFECTS OF ITS DISCHARGE ON THE C&O CANAL

NATIONAL HISTORIC PARK

AND THE ENDANGERED

SHORTNOSE STURGEON

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

June 19, 2002

Serial No. 107-131

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

JAMES V. HANSEN, Utah, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,

Vice Chairman

W.J. ‘‘Billy’’ Tauzin, Louisiana

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Scott McInnis, Colorado

Richard W. Pombo, California

Barbara Cubin, Wyoming

George Radanovich, California

Walter B. Jones, Jr., North Carolina

Mac Thornberry, Texas

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Greg Walden, Oregon

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

C.L. ‘‘Butch’’ Otter, Idaho

Tom Osborne, Nebraska

Jeff Flake, Arizona

Dennis R. Rehberg, Montana

George Miller, California

Edward J. Markey, Massachusetts

Dale E. Kildee, Michigan

Peter A. DeFazio, Oregon

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Calvin M. Dooley, California

Robert A. Underwood, Guam

Adam Smith, Washington

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Jay Inslee, Washington

Grace F. Napolitano, California

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Tim Stewart, Chief of Staff

Lisa Pittman, Chief Counsel/Deputy Chief of Staff

Steven T. Petersen, Deputy Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

(III)

CONTENTS

Page

Hearing held on June 19, 2002 ............................................................................... 1

Statement of Members:

Christensen, Hon. Donna M., a Delegate in Congress from the Virgin

Islands ............................................................................................................ 6

Hansen, Hon. James V., a Representative in Congress from the State

of Utah ........................................................................................................... 1

Prepared statement of ............................................................................... 2

Otter, Hon. C.L. ‘‘Butch’’, a Representative in Congress from the State

of Idaho .......................................................................................................... 53

Radanovich, Hon. George P., a Representative in Congress from the State

of California ................................................................................................... 3

Prepared statement of ............................................................................... 5

Washington Times article ‘‘EPA says toxic sludge is good for fish’’

submitted for the record ........................................................................ 55

Rehberg, Hon. Dennis R., a Representative in Congress from the State

of Montana, Prepared statement of ............................................................. 49

Statement of Witnesses:

Grumbles, Benjamin H., Deputy Assistant Administrator for Water, U.S.

Environmental Protection Agency ............................................................... 32

Prepared statement of ............................................................................... 34

Izzo, Dominic, Principal Deputy Assistant Secretary of the Army for

Civil Works, U.S. Army Corps of Engineers ............................................... 21

Prepared statement of ............................................................................... 29

Letter and report ‘‘Washington Aqueduct Sediment Discharge—

Report to Congress’’ submitted for the record ..................................... 24

Keeney, Timothy R.E., Deputy Assistant Secretary for Oceans and

Atmosphere, National Oceanic and Atmospheric Administration, U.S.

Department of Commerce ............................................................................. 12

Prepared statement of ............................................................................... 15

Letter to the National Marine Fisheries Service submitted for the

record ...................................................................................................... 14

Two diagrams showing shortnose sturgeon, NPDES and drinking

water facilities submitted for the record .............................................. 18

Response to questions submitted for the record ..................................... 19

Comparison of the 2001 Klamath River and 2002 Potomac River

Biological Opinions submitted for the record ...................................... 70

Murphy, Donald W., Deputy Director, National Park Service, U.S.

Department of the Interior ........................................................................... 8

Prepared statement of ............................................................................... 10

(1)

OVERSIGHT HEARING ON THE WASHINGTON

AQUEDUCT AND THE EFFECTS OF ITS DISCHARGE ON THE C&O CANAL NATIONAL

HISTORIC PARK AND THE ENDANGERED

SHORTNOSE STURGEON

Wednesday, June 19, 2002

U.S. House of Representatives

Committee on Resources

Washington, DC

The Committee met, pursuant to call, at 10:21 a.m., in room

1334, Longworth House Office Building, Hon. James V. Hansen

(Chairman of the Committee) presiding.

STATEMENT OF THE HON. JAMES V. HANSEN, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH

The CHAIRMAN. The Committee will come to order.

We apologize for starting late. We don’t like to do that in this

Committee, but we had a journal vote. I am sure more members

will be dribbling in.

This morning the Committee on Resources is here to examine the

effects of the Washington Aqueduct discharge on the C&O Canal

National Historic Park and the endangered shortnose sturgeon. I

would like to begin by welcoming our witnesses here today. I would

also like to thank the members of this Committee who have

brought this issue to the attention of the full Committee on Resources.

For those of us on this Committee, the issue extends beyond the

Washington Aqueduct. For many years, those of us who represent

rural areas in the west have had a difficult time understanding

how those living in urban areas can be so unfamiliar with the

reaches and impacts of the Endangered Species Act and other environmental acts.

I appreciate that this forum today will provide the Committee

with an opportunity to examine the extent to which this has been

the result of agencies failing to enforce laws equally across the

board. We have long suspect that if laws, such and the Endangered

Species Act were enforced the way they are in the rural west that

the urban parts of the country would simply not stand for it.

2

As these witnesses are well aware, agencies enjoy a broad degree

of discretion in choosing where they are going to focus their attention and resources in enforcing the environmental laws.

It has been clear to many members of this Committee that the

enforcement agencies simply do not pursue their duties with the

same vigor and force in the urban areas of the east as their counterparts do in the rural west. Maybe this is due to the fact that

the same unequal standard is applied environmental groups who

love the tool of litigation, are much more willing to stand over the

shoulder of the enforcement agencies of the west and drag them

into court if they do not share their vigor than they are back here

in the nation’s capital.

Nevertheless, the laws of this nation require that the standard

be equally applied and it is the duty of this Committee to see that

when the law in not being equally applied that we raise the issue.

Today, we will be interested to learn how the Washington Aqueduct, operated by the Army Corps of Engineers is permitted by the

EPA to discharge limitless amounts of sediment, together with

heavy amounts of additives, such as aluminum, directly into the

C&O Canal National Historic Park.

We have heard complaints about this practice from all quarters,

including park officers complaining about heavy amounts of chlorine in the discharges, fishermen complaining about its impact

upon the fish, and local recreationists about the smell.

Once again, I appreciate the presence of the witnesses here today

and the opportunity for the Committee to take a close look at this

issue.

[The prepared statement of Mr. Hansen follows:]

Statement of The Honorable James V. Hansen, a Representative in

Congress from the State of Utah

Good morning. This hearing will come to order.

This morning the Committee on Resources is here to examine the effects of the

Washington Aqueduct discharges on the C & O Canal National Historic Park and

the endangered shortnose sturgeon. I’d like to begin by welcoming our witnesses

here today. I’d also like to thank the members of this Committee who have brought

this issue to the attention of the full Committee on Resources.

For those of us on this Committee, this issue extends beyond the Washington Aqueduct. For many years, those of us who represent rural areas in the west have had

a difficult time understanding how those living in urban areas can be so unfamiliar

with the reaches and impacts of the Endangered Species Act and other environmental laws.

I appreciate that this forum today will provide the Committee with an opportunity

to examine the extent to which this has been a result of agencies failing to enforce

laws equally across the board. We have long suspected that if laws, such as the Endangered Species Act, were enforced the way they are in the rural west that the

urban parts of the country would simply not stand for it. As these witnesses are

well aware, agencies enjoy a broad degree of discretion in choosing where they are

going to focus their attention and resources in enforcing environmental laws.

It has been clear to many members of this Committee that the enforcement agencies simply do not pursue their duties with the same vigor and force in urban areas

of the east as their counterparts do in the rural west. Maybe this is due to the fact

that the same unequal standard is applied by the extreme environmental groups,

who love the tool of litigation, are much more willing to stand over the shoulder

of the enforcement agents of the west and drag them into court if they do not share

their vigor than they are back here in the nation’s capital. Nevertheless, the laws

of this nation require that the standard be equally applied and it is the duty of this

Committee to see that when the law is not being equally applied that we raise the

issue.

3

Today, we will be interested to learn how the Washington Aqueduct, operated by

the Army Corps of Engineers is permitted by the EPA to discharge limitless

amounts of sediment, together with heavy amounts of additives, such as aluminum,

directly into the C & O Canal National Historic Park. We have heard complaints

about this practice from all quarters, including park police officers complaining

about heavy amounts of chlorine in the discharges, fisherman complaining about its

impacts upon the fish, and local recreationists about the smell.

Once again I appreciate the presence of the witnesses here today and the opportunity for the Committee to take a close look at this issue.

The CHAIRMAN. With that, Mr. Radanovich, do you have an opening statement as the Subcommittee Chairman?

Mr. RADANOVICH. I do, thank you.

STATEMENT OF HON. GEORGE RADANOVICH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. RADANOVICH. Mr. Chairman, I appreciate your leadership on

so many of the issues that are important to this country, and particularly in the west, and especially on this issue. I am very

pleased that this oversight hearing is being held and that this important matter is being brought to the attention of the full Committee on Resources.

This is an issue that goes to the heart of what we do here in this

Committee and I think that everybody would agree that one of the

most fundamental principles upon which this nation was founded

and is operated on is that the laws of this country must be equally

enforced.

The American people expect this and they expect their Representatives in Congress to insist on an equal standard. As any

representative of a western State or a rural State can attest, there

has been no lack of vigor in how the environmental laws are enforced in the west or in rural parts of the country.

Among those of us in the west there is a great realization that

the Federal enforcement agencies have seen fit to consistently and

vigorously interpret these laws, including the Endangered Species

Act, in the strictest manner possible, even when it has had to

trump human life.

In addition, many environmental groups have held the heavy

hand of litigation over the heads of agencies to ensure that they do

so. This principle of equal enforcement of our environmental laws

is what brings us here today. In the case of the Washington Aqueduct and its impact upon the habitat of the endangered shortnose

sturgeon and the resources of the C&O Canal National Historic

Park, environmental laws in our nation’s capital have simply not

been enforced the way they have been in the rural west.

Since the oversight hearing held to examine these issues in October of 2001 by the Subcommittee on National Parks, Recreation

and Public Lands, this unequal standard has become even more

clear. I remain baffled as to how an agency such as the EPA which

prides itself on its role as the protector of the environment, who for

over 20 years has refused to use their authority to simply impose

some minimum limitations on the enormous volume of sludge

dumped directly through a unit of a national park system and into

what is considered to be the primary, if not the only spawning

habitat for the endangered shortnose sturgeon, despite the fact

4

that the National Marine Fisheries Service have stated that the

fish is generally present in the Potomac River, which is a National

Heritage River.

Let me reiterate again, there are absolutely no limitations on the

amount of sludge that can be dumped directly upon this habitat

and into this park.

Let me also state up front that we are not asking them to do

something that they would not otherwise be willing to do and that

they have continued continually to impose stricter regulations

throughout the country.

In 1995, a draft MPDES permit was issued by the EPA which

placed the same kind of limitations that we are asking them to impose today. In fact, these are the same standards that every other

water treatment plant in this region abides by; none of which, I

might add, discharge into a National Park unit. But for some unknown reason, the draft permit was pulled and today we have a

draft permit in its place that has removed those limitations and

maintains the status quo.

Why? Did the EPA yield to a powerful interest? Is that the same

powerful interest still exerting that pressure on the agency today?

Why then, when EPA’s own personnel have described the sludge as

the most toxic discharge they have ever seen, does the practice continue?

Why, when rural Americans in rural parts of this country are required to meet these standards of modernization, is it not required

of an affluent area and our Federal agencies?

Why have multiple reports by Park Service law enforcement officials including one where the officer describes the discharge as

‘‘highly chlorinated discharge, so strong as to burn their eyes, nose

and throats from 30 yards up stream’’ been met with absolutely no

response from the Park Service, despite chlorine’s known impact on

aquatic life?

Why is it that the Park Service has not at least expressed opposition to the practice? They have certainly used the bully pulpit before to express their opposition to impacts on the parks that originate outside their borders.

This is a direct dumping of sludge into a National Park unit.

Why has the Park Service remained silent in light of the clear impacts upon the park and the complaints from the visitors?

Why is it that the weight of the Endangered Species Act is not

brought to bear here, but its full weight is continually felt over and

over and over in rural areas of the United States, without regard

to human impact?

Why are the Federal agencies just now engaging in formal consultation after they have known about this situation for over 20

years, just now engaging in formal consultation under the Endangered Species Act when NPDES has stated that the fish is generally present in the area for years?

I am hopeful that the witnesses today will provide answers for

these questions. I continually remain hopeful that as this inherited

issue is brought to the full attention to the Bush Administration

that they will proactively take action to ensure that our laws are

equally enforced so that the folks who inhabit the rural parts of

this country can know that the full weight of the laws that rouVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6602 80271.TXT HRESOUR1 PsN: HRESOUR1
5

tinely are brought to bear on their lives and communities are also

being enforced on the urban parts of our country. The principle of

equal application of the law demands it.

Mr. Chairman, again, I want to thank you for bringing this to

the full Resources Committee. I look forward to the testimony of

the witnesses.

[The prepared statement of Mr. Radanovich follows:]

Statement of The Honorable George P. Radanovich, a Representative in

Congress from the State of California

Thank you Mr. Chairman. I appreciate your leadership on so many issues that

are important to the country and particularly the West, including this issue.

I am pleased that this oversight hearing is being held and that this important

matter is being brought to the attention of the full Committee on Resources. This

is an issue that goes to the heart of what we do here in this Committee. I think

that everyone would agree that one of the most fundamental principles upon which

this nation was founded and has operated is that the laws of this country are enforced equally. The American people expect this and they expect their representatives in Congress to insist on an equal standard. As any representative of a western

state can attest, there has been no lack of vigor in how environmental laws are enforced in the west. Among those of us in the west, there is a great realization that

the Federal enforcement agencies have seen fit to consistently and vigorously interpret these laws, including the Endangered Species Act in the strictest manner possible, even when it has had to trump human life. In addition, environmental groups

have held the heavy hand of litigation over the heads of the agencies to ensure that

they do so.

This principle of the equal enforcement of our environmental laws is what brings

us here today. In the case of the Washington Aqueduct and its impact upon the

habitat of the endangered shortnose sturgeon and the resources of the C & O Canal

National Historic Park, environmental laws in our nation’s capital have simply not

been enforced the way they have been in the rural west. Since the oversight hearing

held to examine these issues in October of 2001 by the Subcommittee on National

Parks, Recreation, and Public Lands, this unequal standard has become even more

clear. I remain baffled as to how an agency such as the EPA, which prides itself

on its role as the protector of the environment, can continue to refuse to use their

authority to simply impose some minimum limitations on the enormous volume of

sludge dumped directly through a unit of the national park system and into what

is considered to be the ‘‘primary, if not only spawning habitat’’ for the endangered

shortnose sturgeon, despite the fact that the National Marine Fisheries Service has

stated that the fish is ‘‘generally present’’ in the Potomac River.

Let me reiterate that again. There are absolutely no limitations on the amount

of sludge that may be dumped directly upon this habitat and into the park. Let me

also state up front that we are not asking them to do something they would not

otherwise be willing to do and that they have not continually imposed throughout

the country. In 1995 a draft NPDES permit was issued by the EPA which placed

the same kind of limitations that we are asking them to impose today. In fact, these

are the same standards that every other water treatment plant in the region abides

by, none of which I might add, discharge into a national park unit. But for some

unknown reason, that draft permit was pulled and today we have a draft permit

in its place that has removed those limitations and maintains the status quo.

Why? Did the EPA yield to a powerful interest? Is that same powerful interest

still exerting that pressure on the agency today? Why, when EPA’s own personnel

have described the sludge as ‘‘the most toxic discharge [they] have seen’’ does the

practice continue? Why, when smaller rural areas of the country are required to

meet these standards of modernization, is it not required of an affluent area and

our Federal agencies? Why have multiple reports by Park Service law enforcement

officials, including one where the officer describes the discharge as a ‘‘highly

chlorinated discharge’’ so strong as to burn their ‘‘eyes, nose, and throat from 30

yards upstream’’ been met with no response from the Park Service, despite

chlorine’s known impact upon aquatic life? Why is it that the Park Service has not

at least expressed opposition to the practice? They have certainly used the bully pulpit before to express their opposition to impacts upon the parks that originate outside their borders. This is a direct dumping of sludge into a national park unit. Why

has the Park Service remained silent in light of the clear impacts upon the park

and complaints from visitors? Why is it that the weight of the Endangered Species

6

Act is not being brought to bear here, but its full weight is continually felt over and

over and over in rural areas of the west, without regard to its human impact? Why

are the Federal agencies not engaged in formal consultation under the ESA when

NMFS has stated that the fish is ‘‘generally present’’ in the area? Why are we now

hearing from the former EPA permit writer stating that the discharges are clearly

illegal and violate not only EPA regulations, but also the Clean Water Act and yet

the EPA continues to maintain that this permit is nothing unusual?

I am hopeful that the witnesses here today will be able to provide answers to

these questions. I continually remain hopeful that as this inherited issue is brought

to the full attention of the Bush Administration that they will proactively take action to ensure that our laws are equally enforced so that the folks who inhabit the

rural areas of this country can know that the full weight of the laws that routinely

are brought to bear upon their lives and communities are also being enforced in the

more urban areas of our nation. The principle of the equal application of the law

demands it.

Once again, thank you Mr. Chairman.

The CHAIRMAN. I thank the gentleman from California.

The gentlelady from the Virgin Islands, the Ranking Member of

the Subcommittee.

Ms. CHRISTENSEN. Thank you, Mr. Chairman.

STATEMENT OF HON. DONNA CHRISTENSEN, A DELEGATE IN

CONGRESS FROM THE VIRGIN ISLANDS

Ms. CHRISTENSEN. Mr. Chairman, the environmental degradation

within our National Park system causes by various forms of pollution is a chronic and pressing issue. As a result, we welcome the

Committee’s exercising its oversight jurisdiction to investigate this

persistent problem.

As you are aware, however, this is the second oversight hearing

conducted regarding operation of the Washington Aqueduct following an identical hearing before the National Parks, Recreation

and Public Lands Subcommittee less than 9 months ago.

Of all the environmental threats facing the 385 units of the National Park system, this is the only one to receive this kind of energetic focus. Thick smog caused by nearby coal-fired power plants

hang over the Great Smokey Mountains and Big Ben National

Parks.

Industrial and agricultural runoff spews poisonous amounts of

phosphorus, nitrogen and mercury into the waters of the Everglades National Parks.

Cruise ships dump raw sewage, oily bilge water and toxic chemicals into Glacier Bay. Other units have leaking underground storage tanks encroaching road and subdivision development and the

list goes on and on, and yet we have not held one oversight hearing

on those issues.

While the operation of the Washington Aqueduct may raise serious issues, it is not the single most important pollution issue facing

our National Parks. Other issues are more serious and more easily

remedied and we would welcome a similar level of Committee interest in resolving those challenges as well.

As to the Washington Aqueduct, our Subcommittee hearing on

this topic outlined the problem well. In creating the C&O Canal

National Historic Park, Congress grandfathered the culverts that

transport this sediment under the park and back into the river.

As a result, neither the enabling statute or any other statue of

which we are aware grants the National Park Service the authority

7

to alter the way in which the aqueduct is operated. If this practice

is harming the park resources, then we have more blame in Congress than anywhere else.

The National Marine Fisheries and U.S. Fish and Wildlife Service have fulfilled their responsibilities by trying to establish whether or not any endangered species are present in the Potomac and

providing that information to the Corps and EPA.

As a result, that information is being incorporated, as I understand it, into the new permit. EPA is following the process outlined

in the Clean Water Act to reissue a NPDES permit for the aqueduct. The agency has hired independent contractors to conduct scientific evaluations of the effects of returning this sediment to the

river.

Those evaluations have found little or no harm, but their recommendations regarding the theoretical effects of the young sturgeon are being incorporated into the new permit anyway.

For their part, the Army Corps of Engineers operates a facility

according to existing law and EPA permit. It should be noted that

the last two agencies, the EPA and the Corps, are not within the

jurisdiction of this Committee.

The current situation is far from ideal, and I do appreciate the

concern about the smell of the discharge. However, it is not clear

that this Committee would have these agencies do differently. Nor

is it clear that new information there is to be gathered on this

topic.

It is our hope that after the second hearing we can move forward

to broaden the scope of our oversight to include the myriad other

pollution problems facing our national parks over which the Committee does have jurisdiction.

We thank our witnesses for their time today and look forward to

their testimony.

Unfortunately, our Ranking Member, Mr. Rahall, couldn’t be

here this morning, but he wanted me to recognize, on his behalf

Ben Grumbles with the EPA, since for many years Mr. Grumbles

was a staffer on the Transportation and Infrastructure Committee

on which Mr. Rahall also serves. He was always very helpful to

both Democrats and Republicans on that Committee.

Welcome to you, Mr. Grumbles, and to all of our witnesses this

morning.

The CHAIRMAN. I thank the gentlelady.

The CHAIRMAN. We have a panel of four experts with us at this

time, Mr. Don Murphy, Deputy Director, National Park Service;

Tim Keeney, Deputy Assistant Secretary for Oceans and Atmosphere; Dominic Izzo, Principal Deputy Assistant Secretary of the

Army for Civil Works; and Ben Grumbles, Deputy Assistant Administrator for Office of Water, Environmental Protection Agency.

As you gentlemen can see, you have these little things like this

in front of you. That gives you 5 minutes. I know you can probably

talk for an hour or so on your issues, so let’s see if you can—

Mr. RADANOVICH. Mr. Chairman, if I may interrupt, is it possible

to play just a two, two or 3-minute video before we begin the testimony?

The CHAIRMAN. The gentleman asks unanimous consent to play

a video for 2 minutes.

8

[Video played.]

Mr. RADANOVICH. Thank you, Mr. Chairman.

The CHAIRMAN. Well, let’s hope the beaver makes it.

I apologize to you folks who are standing. We normally, for the

full Committee, don’t use this room. We use the other room, but it

is being remodeled right now.

As I was saying, gentlemen, there is this little thing in front of

you. We try to hold you to 5 minutes. That is about a minute per

page if you talk fast.

So, we will start with you, Mr. Murphy. Thank you for being

here and thank all of you for being here.

Your full testimony will be included in the record if you want to

abbreviate your testimony.

I will turn the gavel over to the Chairman of the Subcommittee

on Public Lands and Recreation and whatever else you do.

STATEMENT OF DONALD MURPHY, DEPUTY DIRECTOR,

NATIONAL PARK SERVICE

Mr. MURPHY. Thank you, Mr. Chairman. I am Donald Murphy,

Deputy Director of the National Park Service. It is good to see you

again.

Thank you for the opportunity to appear before this Committee

to present the views of the Department of Interior on discharges

from the Washington Aqueduct on the Chesapeake & Ohio Canal

and through the C&O National Historic Park.

The U.S. Army Corps of Engineers operates the Washington Aqueduct facility, which provides potable water to the District of Columbia and certain jurisdictions in Northern Virginia. The United

States Environmental Protection Agency regulates the discharges

from this facility within the District of Columbia.

Although the Department of Interior does not bear primary responsibility for the operation of the Washington Aqueduct facility

or the regulation of its discharges, we take very, very seriously our

stewardship responsibilities for the resources entrusted to our care.

Since we became aware of environmental concerns regarding the

Washington Aqueduct facility operation, we have immersed ourselves in the complex legal and technical issues associated with

them and are committed to working with other agencies and jurisdictions to address the problems and concerns.

Recently, EPA provided a key opportunity for all concerned with

the impacts of the Washington Aqueduct facility. On March 28,

2002, EPA proposed a revised discharge permit for the facility

under the National Pollution Discharge Elimination System known

as NPDES. The Department of Interior has prepared comments on

the proposed permit.

As an interim goal, the Department supports the approximately

35 percent further reduction of sediments discharged to the Potomac River proposed in the revised permit. However, the Department feels there is a need for additional research in monitoring of

the discharge impacts.

With respect to the United States Fish and Wildlife Service, involvement in the Washington Aqueduct issue, the Fish and Wildlife

Service has stewardship responsibility for certain Potomac River

species using the best scientific information available. The Fish

9

and Wildlife Service has already determined that except for occasional transient individuals, endangered species under the jurisdiction of the Fish and Wildlife Service are neither present, near nor

likely to be affected by the discharges for purposes of the Endangered Species Act.

Please note that the National Marine Fisheries Service, not the

Fish and Wildlife Service, have sole regulatory authority over the

shortnose sturgeon. If any new information that has not already

been considered becomes available suggesting affects the listed species or their designated critical habitat, the Fish and Wildlife Service will determine if Section 7 consultation under the Endangered

Species Act must be reinitiated.

In addition to ESA listed species, the Fish and Wildlife Service

has statutory authority and trust responsibilities with respect to a

number of Potomac River migratory fish species, Striped Sass, Alewife, Blueback Herring, and American Shad.

In 1998, EPA requested that the Fish and Wildlife Service convene a panel of fishery experts to recommend short-term measures

to protect fish potentially impacted by the discharges, while the

discharge permit was being reissued.

In 1999, the panel recommended among other measures a time

of year restriction on the discharges that correspond to sensitive

breeding and migratory seasons. EPA has included this restriction

in its current draft permit.

The Fish and Wildlife Service Environmental Contaminants

Branch also provided limited technology assistance to EPA in the

development of a work plan for a 3-year discharge study. The Fish

and Wildlife Service believes additional studies designed to assess

the direct and cumulative impacts on aquatic resources under the

Fish and Wildlife Service jurisdiction are needed. The Fish and

Wildlife Service is willing to provide technical assistance with respect to these studies.

With respect to the National Park Service involvement in the

Washington Aqueduct, the facility discharges flow through conduits

traversing the C&O Canal National Historic Park, managed at the

National Park Service. These conduits empty either on park land

near the Potomac River or the riverbed itself.

The Washington Aqueduct has had discharge lines in place since

at least 1927, well before the park was established in 1971. Since

the hearing on the Washington Aqueduct back in October, the department, with the cooperation of the Corps, has been reviewing

relevant documents to determine whether all the existing discharges fall within the scope of the grandfathered permits and

right of way.

If National Park Service ultimately determines that authorized

discharges are harming park resources, the agency will take appropriate action to protect park resources consistent with the findings

of the studies of the National Park Service and the Fish and Wildlife Service.

In addition to managing the C&O Canal National Historic Park,

the National Park Service also manages the riverbed of the Potomac River in the District of Columbia. Based on its unique assignment to the department’s jurisdiction, National Park Service has

long managed the riverbed as miscellaneous property on behalf of

10

the Office of the Secretary of Interior, but has not managed it as

a unit of the National Park Service.

Nevertheless, the potential impact of sedimentation on the riverbed from the Washington Aqueduct discharges is another area of

concern for the National Park Service.

Mr. Chairman, this concludes my testimony on behalf of the Department of Interior who is committed to continuing to learn more

about the impacts of the outfalls from the Washington Aqueduct on

the resources managed by the department and working with these

other Federal agencies with authority over the discharges to minimize those impacts.

That concludes my prepared remarks and I am looking forward

to answering any questions that you might have.

[The prepared statement of Mr. Murphy follows:]

Statement of Donald W. Murphy, Deputy Director, National Park Service,

U.S. Department of the Interior

Mr. Chairman, thank you for the opportunity to appear before this Committee to

present the views of the Department of the Interior on discharges from the Washington Aqueduct on the Chesapeake and Ohio (C&O) Canal National Historical

Park and on the endangered shortnose sturgeon.

The U.S. Army Corps of Engineers (Corps) operates the Washington Aqueduct facility which provides potable water to the District of Columbia and certain jurisdictions in Northern Virginia. The U.S. Environmental Protection Agency (EPA) regulates the discharges from this facility within the District of Columbia. Although the

Department of the Interior does not bear primary responsibility for the operation

of the Washington Aqueduct facility or the regulation of its discharges, we take very

seriously our stewardship responsibilities for the resources entrusted to our care.

Since we became aware of environmental concerns regarding the Washington Aqueduct facility’s operation, we have immersed ourselves in the complex legal and technical issues associated with them, and are committed to working with the other

agencies and jurisdictions to address any problems and concerns.

Recently, EPA provided a key opportunity for all concerned with the impacts of

the Washington Aqueduct facility. On March 28, 2002, EPA proposed a revised discharge permit for the facility under the National Pollution Discharge Elimination

System (NPDES). The Department of the Interior has prepared comments on the

proposed permit. As an interim goal, the Department supports the approximately

35 percent further reduction of sediments discharged to the Potomac River proposed

in the revised permit. However, the Department believes there is a need for additional research and monitoring of discharge impacts.

With respect to the U.S. Fish and Wildlife Service’s (FWS) involvement in the

Washington Aqueduct issue, the FWS has stewardship responsibility for certain Potomac River species. Using the best scientific information available, the FWS has

already determined that, except for occasional transient individuals, endangered

species under the jurisdiction of the FWS are neither present, near, nor likely to

be affected by the discharges for purposes of the Endangered Species Act. Please

note that the National Marine Fisheries Service, not FWS, has sole regulatory authority over the shortnose sturgeon. If any new information that has not already

been considered becomes available suggesting effects to listed species or their designated critical habitat, the FWS will determine if Section 7 consultation under the

Endangered Species Act must be reinitiated.

In addition to ESA listed species, the FWS has statutory authority and trust responsibilities with respect to a number of Potomac River migratory fish species including striped bass, alewife, blueback herring, and American shad. In 1998, EPA

requested that FWS convene a panel of fisheries experts to recommend short-term

measures to protect fish potentially impacted by the discharges, while the discharge

permit was being re-issued. In 1999, the panel recommended, among other measures, a time of year restriction on the discharges that corresponds to sensitive

breeding and migratory seasons. EPA has included this restriction in its current

draft permit. The FWS Environmental Contaminants Branch also provided limited

technical assistance to EPA in the development of a workplan for a 3-year discharge

study. The FWS believes additional studies designed to assess the direct and cumulative impacts on aquatic resources under FWS jurisdiction are needed. The FWS

is willing to provide technical assistance with respect to these studies.

11

With respect to the National Park Service’s (NPS) involvement in the Washington

Aqueduct issue, the facility’s discharges flow through conduits traversing the C&O

Canal National Historical Park managed by NPS. These conduits empty either on

parkland near the Potomac River or in the river itself.

The establishment of the C&O Canal National Historical Park was the culmination of years of community efforts to save the canal as a recreational, natural, and

historical resource. It appears that Congress sought to ensure that creation of the

park would not disturb certain valid existing rights and permits by including in the

enabling legislation (P.L. 91–664) language that grandfathered them. 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 has had

discharge lines in place since at least 1927, well before the park was established

in 1971. Since the hearing on the Washington Aqueduct by the Subcommittee on

National Parks, Recreation, and Public Lands on October 30, 2001, the Department,

with the cooperation of the Corps, has been reviewing relevant documents to determine whether all the existing discharges fall within the scope of the grandfathered

permits and rights-of-way.

The National Park Service believes there is a need to assess the nature and extent of any potential impacts from these discharges on park resources. The NPS is

willing to work with the other Federal agencies on these studies. If NPS ultimately

determines that authorized discharges are harming park resources, the agency will

take appropriate action to protect park resources consistent with the finding of the

studies NPS and FWS have identified.

In addition to managing the C&O Canal National Historical Park, the NPS also

manages the riverbed of the Potomac in the District of Columbia. Based on its

unique assignment to the Department’s jurisdiction, NPS has long managed the riverbed as miscellaneous property on behalf of the Office of the Secretary of the Interior, but it is not managed as a unit of the National Park System. Nevertheless,

the potential impact of sedimentation on the riverbed from the Washington Aqueduct discharges is another area of concern to the NPS.

In addition to collecting information regarding the Washington Aqueduct discharges, since the October, 2001 hearing on this subject, the NPS has begun collecting information from other units of the National Park System that are also involved with discharges that require NPDES permits in order to compare how the

agency addresses situations similar to the one here in Washington, D.C. One such

unit is Gateway National Recreation Area in New York and New Jersey, where the

water quality is heavily influenced by permitted discharges from sewage treatment

plants, combined sewer overflows, industrial effluents, and toxic substances from

abandoned landfills.

As part of an ongoing program to improve water quality in the park, Gateway

staff routinely review draft NPDES permits and provide recommendations to New

York State and New York City governments. Over the past decade, the staff has:

(1) reviewed and commented on four permits for sewage treatment plants adjacent

to Jamaica Bay (26th Ward, Red Hook, Coney Island, and the Rockaway plants);

(2) participated in a review of New York City discharges to reduce the volume of

sediment flowing into to Jamaica Bay; and (3) collaborated with the Interstate Sanitation Commission in an effort, though unsuccessful, to eliminate the year-round

use of chlorine in New York City sewage treatment plant effluents. However, we

note that the drinking water plant return of sediment back to the Potomac River

by the Washington Aqueduct is qualitatively different from the raw and treated

sewage discharges that the Gateway staff monitors.

Mr. Chairman, in conclusion, the Department is committed to continuing to learn

more about the impacts of the outfalls from the Washington Aqueduct on the resources managed by the Department and working with the Federal agencies with

authority over the discharges to minimize those impacts. That concludes my prepared remarks, and I would be pleased to answer any questions you or other

Committee members might have.

Mr. RADANOVICH. [Presiding] Thank you, Mr. Murphy. Welcome

to the Committee. We will go ahead and hear from everybody and

then open up the panel for questions.

I would like to introduce Mr. Tim Keeney, the Deputy Assistant

Secretary for Oceans and Atmosphere for the National Oceanic and

Atmospheric Administration. Well, Mr. Keeney. Again, I won’t be

12

real strict on that time clock. I want to make sure everybody gets

out what they need to, so use the time to make your remarks.

STATEMENT OF TIM KEENEY, DEPUTY ASSISTANT SECRETARY

FOR OCEANS AND ATMOSPHERE, NATIONAL OCEANIC AND

ATMOSPHERIC ADMINISTRATION

Mr. KEENEY. Thank you. Good morning, Mr. Chairman and

members of the Committee. I am Tim Keeney, Deputy Assistant

Secretary of Commerce for Oceans and Atmosphere. Thank you for

the opportunity to testify before this Committee on the status of

shortnose sturgeon in the Potomac River and the effects of the discharges from the Washington Aqueduct on its population and habitat.

Mr. Chairman, I ask that my entire statement be introduced into

the record. This is just an oral summary.

Mr. RADANOVICH. I am sure there is no objection. It is so ordered.

Mr. KEENEY. The shortnose sturgeon is listed under the Endangered Species Act, ESA of 1973. The National Oceanic and Atmospheric Administration or NOAA Fisheries has sole jurisdiction for

protecting shortnose sturgeon under the Endangered Species Act.

Prior to 1996, the best available information suggested that the

species was extirpated from the Potomac River. However, over the

past 6 years, six shortnose sturgeon have been captured in the

Lower Potomac River.

Mr. Chairman, I refer to a map I have brought with me. I believe

I have made copies available for members to see the areas that I

am talking about. The map on the right, which is the map of the

entire Chesapeake Bay and the tributaries that flow into it specifically, if you look at the Potomac River area, it is indicated where

the six fish were caught. Three were caught sort of midway up the

Potomac River. And four additional ones were caught near the

mouth of the river. So that is a total of seven and that is where

they were caught.

Also, the same map indicates with stars where other shortnose

sturgeon have been found. As you can see, most of them are in the

northern part of the Chesapeake Bay, particularly up toward the

Delaware River.

These unexpected captures represented new scientific information to be considered by NOAA Fisheries and other agencies including the Corps of Engineers which operates the Washington Aqueduct and EPA that permits the aqueduct discharges. Not one of the

six recent captures of shortnose sturgeon has been documented

within 50 miles of the aqueduct discharges sites.

There is also no documentation of shortnose sturgeon spawning

anywhere in the Potomac River. However, based on an understanding of preferred sturgeon spawning habitat and the fact that

little sampling has been conducted, NOAA Fisheries and the Environmental Protection Agency have made the precautionary assumption that shortnose sturgeon may be present and spawning in

the vicinity of the Washington Aqueduct and may be affected by its

discharges/

In light of this, EPA and NOAA Fisheries initiated an informal

ESA Section 7 consultation in the spring of 2001 to examine the

possible effects of the aqueduct discharges on shortnose sturgeon.

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Informal consultations include all discussions and correspondence

between NOAA Fisheries and Federal action agencies that are designed to assist NOAA and the action agency in assessing the effects of the of the action on the listed species.

In addition, the informal consultation is a very valuable tool by

which the action agency may refine a proposed action with guidance from NOAA Fisheries to minimize adverse effects on listed

species.

Our informal consultation with EPA has already yielded benefits

for sturgeon. Through discussion with NOAA Fisheries, EPA and

the Corps of Engineers, EPA has included a provision in their draft

permit to prohibit discharges during the spring months when sturgeon and many species spawn.

This provision significantly reduces the potential impact of the

discharges on sturgeon during the Corp’s management of the aqueduct. Despite this progress, NOAA Fisheries continues to have concerns about the potential effect of the discharges on shortnose sturgeon.

Last week, EPA sent NOAA Fisheries a letter requesting a formal consultation along with a final version of their biological evaluation which provides information NOAA Fisheries needs to continue this consultation.

Mr. Chairman, I would like to submit a copy of this letter for the

record.

Mr. RADANOVICH. Is there any objection? It is so ordered.

[The letter from EPA submitted for the record follows:]

14

Mr. KEENEY. NOAA Fisheries will seek to complete the consultation within the required 135 days of the request. This consultation

will culminate in NOAA Fisheries providing its biological opinion

regarding the possible effects of the permit on shortnose sturgeon.

Mr. Chairman, in closing, my written testimony outlines the

need for better science and data to ascertain the extent to which

endangered sturgeon may rely on the Little Falls area for spawning habitat.

15

NOAA Fisheries plans to meet with other Federal and local agencies later this summer to further investigate and propose sampling

protocols for the spring 2003 sturgeon spawning season.

NOAA Fisheries looks forward to working with Congress, other

Federal agencies and the citizens of the area to gather the additional science necessary to make informed decisions that will best

protect the shortnose sturgeon in the Potomac River.

Mr. Chairman, I welcome any questions from you or any other

members of the Committee.

[The prepared statement of Mr. Keeney follows:]

Statement of Timothy R.E. Keeney, Deputy Assistant Secretary,

U.S. Department of Commerce

Good morning, Mr. Chairman and members of the Committee. Thank you for the

opportunity to testify today on the status of shortnose sturgeon in the Potomac

River, and the effects of the discharges from the Washington Aqueduct on its population and habitat. This issue is of great interest and concern to NOAA just as it

is to this Committee. We look forward to working with Congress, other Federal

agencies, and the citizens of the area to identify and implement appropriate programs to conserve species and aquatic habitats.

Background

Shortnose sturgeon exists in rivers and bays of eastern North America from Canada to Florida. It is an anadromous species, 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. The National Marine Fisheries Service

(NMFS) has sole jurisdiction for protecting shortnose sturgeon under the ESA.

Shortnose Sturgeon in the Chesapeake Bay and Potomac River

Prior to 1996, the most recently documented evidence of shortnose sturgeon in the

Potomac was from 1899. The best available information suggested that the species

was extirpated from the Potomac River. Most of the shortnose sturgeon captured recently in the Chesapeake Bay have been in the upper Bay, north of Baltimore, close

to the Chesapeake and Delaware Canal. Between 1996 and 2002, six shortnose sturgeon were captured in the lower and middle tidal Potomac River during a U.S. Fish

and Wildlife Service (FWS) reward program for Atlantic sturgeon (see attached

map). These shortnose sturgeon were captured between 55 and 123 miles downstream of the Washington Aqueduct’s Little Falls discharge.

In addition to the reward program for Atlantic sturgeon, the FWS conducted two

sampling studies between 1998 and 2000 in the Maryland waters of the Chesapeake

Bay to determine the occurrence of shortnose and Atlantic sturgeon in areas of proposed dredge-fill operations. One of these studies included surveys at five sites located in the middle Potomac River approximately 30 to 74 miles downstream of the

Washington Aqueduct discharge site. During this study, no shortnose sturgeon were

captured. A second much more limited study included sampling at two areas in the

vicinity of Little Falls, Virginia, which are environments that are consistent with

the preferred spawning habitat of shortnose sturgeon in other rivers and are located

near the Aqueduct discharge sites. No shortnose sturgeon were captured during this

study.

To date, no Shortnose sturgeon have been documented in the area of the Aqueduct

discharge sites. There is also no documentation of shortnose sturgeon spawning anywhere in the Potomac River. However, the FWS study that was performed near Little Falls was limited in scope due to adverse river conditions. In addition, shortnose

sturgeon are inherently difficult to capture and often there is little evidence of their

presence in river systems. NMFS and the Environmental Protection Agency(EPA)

have, therefore, made the precautionary assumption that shortnose sturgeon may

be present and spawning in the vicinity of the Aqueduct and may be affected by

the discharges. This assumption is based on the following information: (1) Recent

captures of shortnose sturgeon in downstream reaches of the Potomac River; (2) The

presence of habitat near Little Falls that is consistent with known shortnose sturgeon spawning habitat in other rivers; and (3) Known migratory and spawning behavior of shortnose sturgeon in other rivers for which NMFS has more information.

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Washington Aqueduct ESA Section 7 Consultation History

Prior to 1996, the best available information indicated that shortnose sturgeon

were extirpated from the Potomac River. Therefore, 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 recent captures of shortnose sturgeon during the FWS reward program represented new scientific information that NMFS and other agencies had to

consider, resulting in the initiation of consultation pursuant to section 7 of the ESA

in spring, 2001.

EPA and NMFS pursued ‘‘informal’’ section 7 consultation, as defined by NMFS’

regulations, for over a year on the issuance of a National Pollutant Discharge Elimination System (NPDES) permit for the Washington Aqueduct to determine the possible effects of the Aqueduct discharges on shortnose sturgeon. While the consultation is not yet complete, NMFS has already recommended that the EPA permit contain a condition that no discharges be allowed during the spawning period for

shortnose sturgeon. EPA has included this recommendation as a condition of their

draft NPDES permit. NMFS reviewed a draft of the permit and provided written

comments to the EPA on March 27, 2002.

The Army Corps of Engineers (Corps), operator of the Washington Aqueduct,

funded a three-year water quality study to assess the discharge from the Aqueduct

and its effects. The study report was published in October 2001. EPA used the discharge study results, among other available information, to develop a draft biological evaluation (BE) on the potential impacts of the Washington Aqueduct discharges

on shortnose sturgeon. After NMFS review of EPA’s draft BE and subsequent discussions, EPA and NMFS have agreed to enter into ‘‘formal’’ consultation, which

will culminate in NMFS providing its biological opinion (BO) regarding the possible

effects of the permit on shortnose sturgeon. The BO may include measures to minimize adverse effects on shortnose sturgeon.

Clarifications on Sturgeon Biology and the Consultation Process

We are concerned that there may be several important misconceptions in regards

to sturgeon biology and our ongoing consultation with the EPA. We appreciate the

opportunity to further clarify these issues.

Misconception 1 - Little Falls is the sole spawning ground for the shortnose sturgeon.

We are aware of reports and comments indicating that the Little Falls area is the

sole spawning area of the shortnose sturgeon. This statement is not true. Shortnose

sturgeon exist as 19 distinct populations that occupy and spawn in rivers and bays

from Canada to Florida. In addition, the Potomac River is just one of several tributaries in the Chesapeake Bay drainage that appears to have suitable habitat for

shortnose sturgeon. Other rivers that appear to have suitable spawning habitat for

the Chesapeake Bay population of shortnose sturgeon include the York, Rappahannock, Patuxent, James, Susquehanna, and Gunpowder Rivers.

Without a doubt, more research is needed to fully understand the extent to which

the shortnose sturgeon may or may not rely upon the Little Falls area for spawning

habitat.

Misconception 2 - Discharges from the Aqueduct are responsible for the lack of

sturgeon recovery in the Chesapeake Bay.

Some reports have strongly suggested that the Aqueduct discharges are responsible for the lack of shortnose sturgeon recovery in Chesapeake Bay. NMFS recognizes that water quality may be one of several factors affecting shortnose sturgeon

recovery. However, the facts do not support isolating discharges from the Aqueduct

as a primary factor affecting shortnose sturgeon recovery in the Chesapeake Bay.

As noted above, the Potomac River is just one of several rivers in the Chesapeake

Bay drainage that appear to have suitable habitat for shortnose sturgeon. However,

no recovery of shortnose sturgeon has been observed in any river in the Chesapeake

Bay drainage (see attached map). Therefore, it appears that some natural and/or anthropogenic factor(s) other than sediment discharges into the Potomac may be limiting this species’ ability to recover in the Chesapeake Bay.

It is interesting to note that the Hudson River, which supports the most healthy

and increasing shortnose sturgeon population, is not pristine. Studies have identified 183 separate industrial and municipal discharges in the Hudson and Mohawk

Rivers, including chemical and oil industries, power plants, and sewage and wastewater facilities. In spite of these less than ideal water quality conditions, the Hudson River population of shortnose sturgeon has grown to approximately 60,000 individuals and appears to be on its way toward recovery.

17

Misconception 3 - NMFS is not consulting with the EPA on the effects of Aqueduct

discharges on shortnose sturgeon.

NMFS has been criticized by some for being slow to react to the ramifications of

the discovery of shortnose sturgeon in the lower Potomac. In light of this, I want

to assure you that NMFS will make every effort to be as thorough as possible during

the consultation process.

NMFS has been engaged in an ‘‘informal’’ section 7 consultation with the EPA

since spring 2001 regarding EPA’s issuance of a NPDES permit for the Aqueduct

discharges. Now NMFS and EPA are in ‘‘formal consultation.’’ Formal consultations

generally must be completed within 135 days.

ESA consultations occur in two stages as defined in NMFS’ ESA section 7 regulations: the informal consultation and the formal consultation. Any section 7 consultation is triggered by Federal actions that ‘‘may affect’’ a listed species or critical habitat (50 CFR 402.14). Typically, an action agency will first engage in informal consultation. Informal consultations include all discussions and correspondence between

NMFS and Federal action agencies that are designed to assist NMFS and the action

agency in assessing the effects of the action on the listed species. If NMFS concurs

with the action agency that the action is not likely to adversely affect the listed species, the consultation process ends at the informal stage (50 CFR 402.13). However,

if NMFS determines that the action is ‘‘likely to adversely affect’’ a listed species,

NMFS will recommend that the action agency enter into formal consultation. Alternatively, as EPA has done in this case, an action agency may choose to proceed directly to the formal consultation stage at any point in the process.

Misconception 4 - NMFS has the authority and obligation to shut down Federal

operations that may adversely affect an endangered species.

In 1982, Congress amended the ESA to authorize Federal agencies to adversely

affect threatened or endangered species and even ‘‘take’’ threatened and endangered

species as long as the actions are not likely to jeopardize the continued existence

of the listed species, the ‘‘take’’ is not the intended purpose of the action, and the

impact is minimized. As a result of these amendments, section 7(b)(4) directs NMFS

to issue ‘‘incidental take statements’’ for any take NMFS anticipates, if the action

is not likely to jeopardize the listed species that would be ‘‘taken.’’ Section 7(o) of

the ESA exempts such taking from acts that are prohibited by section 9 of the ESA.

There are several examples of incidental take statements issued in the past that

‘‘authorize’’ takes resulting from sediment discharges into the spawning areas of

threatened or endangered fish.

To conclude, NMFS takes its responsibility to protect endangered aquatic species

seriously. The discovery of the shortnose sturgeon in the lower Potomac will require

additional research by Federal agencies, including NMFS, into its habitat and into

actions that could adversely impact the existence of the species. 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.

[Attachments to Mr. Keeney’s statement follow:]

18

19

Response to Questions Submitted for the Record by Timothy R.E. Keeney,

Deputy Assistant Secretary, U.S. Department of Commerce

Question: Comparison of the 2001 Klamath River and 2002 Potomac River biological

opinions

Answer

In April, 2001, NOAA Fisheries completed a biological opinion (BiOp) on the Bureau of Reclamation’s (BOR) proposed operation of the Klamath Project and the

project’s effects on a threatened population of coho salmon. The BiOp concluded that

the proposed operation of the water storage and delivery system was likely to jeopardize this population of coho salmon, and provided reasonable and prudent alternatives (RPAs) to avoid jeopardizing threatened coho. In November, 2002 NOAA

Fisheries completed a BiOp on the effects of discharges from the Washington Aqueduct, operated by the Army Corps of Engineers (ACOE) and permitted by the EnviVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 80271.TXT HRESOUR1 PsN: HRESOUR1
20

ronmental Protection Agency (EPA), on an endangered population of shortnose sturgeon. The BiOp found that the action was not likely to jeopardize this population

of sturgeon.

These two BiOps differ in their conclusions because of significant differences in

the biology of coho salmon (assessed in Klamath BiOp) and shortnose sturgeon (assessed in Washington Aqueduct BiOp) and based on NOAA Fisheries’ analysis of the

effects of the proposed actions on listed species. In summary, the effects of chronic

reduced water flows in the Klamath River on coho salmon that die after spawning

are more significant than periodic discharges of sediments on sturgeon that can persist and spawn within a river for decades. The differences in the conclusions of the

two BiOps in question are, therefore, not the result of unequal implementation of

the ESA, as some have suggested. Rather, the BiOps differ because of significant

differences in the biology of coho salmon and shortnose sturgeon, and differences in

the effects of the Federal actions on the two species.

What are the Key Biological Differences between Coho Salmon and Shortnose

Sturgeon? Coho salmon in the Klamath River basin, like other Pacific salmon, have

a life history that includes spending a number of years at sea before returning to

natal rivers to spawn. Adults die shortly after spawning. Consequently, an adult

coho salmon that lives out its complete life cycle will spawn only once in its lifetime.

Coho salmon are very dependent on adequate freshwater habitat for juvenile

rearing, adult and juvenile migration, and spawning. Coho can be very habitat limited in the freshwater environment.

Shortnose sturgeon, like coho salmon, are migratory. However, sturgeon do not

die after spawning. Shortnose sturgeon in the Chesapeake Bay and its tributaries

may live 20 years or more. A shortnose sturgeon from the Chesapeake Bay that

lives out its complete life cycle will likely spawn at least several times, and perhaps

more than 15 times. This life history strategy provides a natural buffer against environmental variability and unsuccessful spawning years. It allows shortnose sturgeon populations to withstand an occasional year of low reproductive output without

jeopardizing the population.

What are the Key Differences in Effects of the Federal Actions?

In the Klamath River, the BiOp assessed water management practices which

would result in a significant reduction in habitat quantity and quality for coho salmon. Specific concerns included maintaining adequate habitat space and water temperatures. NOAA Fisheries found that the minimum flow requirements in BOR’s

2001 water management plan were inadequate. NOAA Fisheries determined that

the flow schedule proposed in BOR’s biological assessment would result in a reduction in habitat quantity and quality compared with the average operations of the

project during the 1990s. In NOAA Fisheries’ view, this water management strategy

suffered from the same flaw as BOR’s 2001 biological assessment which the National Research Council (NRC) concluded exposed threatened coho salmon to new

levels of risk and was not scientifically justifiable. Given the life history of coho

salmon and the findings of the NRC, NOAA Fisheries found that the water management plan was likely to jeopardize the continued existence of the species. NOAA

Fisheries recommended higher flows to avoid jeopardy. BOR managed the Project

to meet those flows.

In the Potomac River, the BiOp assessed the effects of periodic discharges of sediment into the Potomac River near Little Falls, where shortnose sturgeon are presumed to spawn. One of NOAA Fisheries’ two major concerns was that discharges

from the Aqueduct could be toxic to shortnose sturgeon. A toxicology study of discharges concluded that there were few toxicological effects on test organisms. NOAA

Fisheries concluded that, given the short duration of the pulse of sediments, the potential toxicological impacts were unlikely to jeopardize shortnose sturgeon. NOAA

Fisheries’ second major concern was that discharges during the spring spawning

season could smother sturgeon eggs and larvae. NOAA Fisheries worked closely

with EPA and ALOE during the early, ‘‘informal’’ stage of the consultation to address this concern. EPA and ACOE agreed to prohibit discharges during the spring

spawning season to avoid potential smothering effects. The only exception would be

under certain emergency situations, and would occur no more than once during the

5-year duration of the permit. Given the life history of shortnose sturgeon, and

given that other rivers in the Chesapeake Bay appear to have suitable spawning

habitat for sturgeon, one discharge in the Potomac River in 5 years is not likely to

jeopardize the continued existence of this sturgeon population.

How have BOR and EPA Responded During the Consultations?

Another distinction between the consultations on the Klamath and Potomac Rivers is how each Federal action agency responded to NOAA Fisheries’ recommendaVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6621 80271.TXT HRESOUR1 PsN: HRESOUR1
21

tions to protect ESA listed species. In each case, NOAA Fisheries found that actions

proposed by the BOR and EPA ‘‘may affect’’ ESA listed species, thereby triggering

a consultation under section 7 of the ESA. NOAA Fisheries and BOR have consulted

multiple times on BOR’s operation of the Klamath Project. In each instance, BOR

has proposed to allow minimum flows below those recommended in NOAA Fisheries’

previous BiOps. Consequently, NOAA Fisheries have issued a series of ‘‘jeopardy’’

BiOps for proposed annual operating plans for the Klamath Project. In contrast,

EPA and ACOE worked with NOAA Fisheries during the ‘‘informal consultation’’

process to minimize negative effects from discharges in the Potomac River on

shortnose sturgeon. Specifically, EPA agreed to alter the permit authorizing discharges from the Washington Aqueduct into the Potomac River to prohibit discharges during the spring spawning season, significantly reducing the threat to

shortnose sturgeon.

Mr. RADANOVICH. Thank you very much, Mr. Keeney. I appreciate your testimony.

Next is Mr. Dominic Izzo, who is the Principal Deputy Assistant

Secretary for the Army for Civil Works, U.S. Army Corps of Engineers.

Dominic, welcome to the Committee. Please begin your testimony.

STATEMENT OF DOMINIC IZZO, PRINCIPAL DEPUTY

ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS,

U.S. ARMY CORPS OF ENGINEERS

Mr. IZZO. Mr. Chairman and members of the Committee, thank

you for inviting me to testify today. I am Dominic Izzo, the Principal Deputy Assistant Secretary of the Army for Civil Works. The

civil works of the Corps of Engineers and its Baltimore District are

under my supervision.

The Baltimore District has a long distinguished history of service

to the Nation and the region and they have a significant record of

good environmental achievements. For example, for more than two

decades, the Baltimore District has been in the forefront of environmental restoration in Chesapeake Bay, including projects that

have improved water quality and habitat in the Potomac River,

Anacostia and Susquehanna Rivers. We have full confidence in the

district and in its commander.

You asked the Army to provide information on the Washington

Aqueduct and its legally permitted discharges. The Washington Aqueduct is a division within the Baltimore District.

I will first summarize the major role the aqueduct plays in support of our Nation’s Capital and the surrounding areas and then

respond to the issues raised in your presentation.

The aqueduct has 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 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 the water supplied to Washington, D.C., Arlington County, Virginia and the city of Falls

Church, Virginia, providing high quality, safe and affordable water

to approximately one million consumers in these areas, particularly

in light of September 11th, is one of the District’s highest priorities.

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The aqueduct 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 under those acts seriously.

It operates in accordance with the National Pollutant Discharge

Elimination System permits issued to it by both the State of Maryland and by the Environmental Protection Agency. These permits

allow the aqueduct to make routine discharges from the sediment

basins to the Potomac River and infrequent, maintenance related

discharges at other permitted locations.

All water treated by the aqueduct comes from the Potomac River

which naturally transports a large volume of sediment. Treatment

involves a three-step process that includes sedimentation, filtration

and disinfection. In the case of the aqueduct, sediment removes begins in the Dalecarlia Reservoir. Half of the sediment taken in

from the Potomac River naturally settles in that reservoir and is

not returned to the Potomac River.

With the aid of a coagulant, aluminum sulfate, the remaining

sediment is force to settle out into six large basins and Dalecarlia

in Georgetown. This process is typical in the water production industry. Periodically, these six sedimentation basins must be

cleaned of the sediment buildup. Their contents, which include

river water, accumulated sediments and the accumulated coagulant, are drained to the Potomac River in keeping with the terms

of the EPA discharge permit.

At the last stage of the basin cleaning at Dalecarlia, some treated water is used to push out the remaining sediment. That water

contains chlorine, but the aqueduct has verified through samples

taken during the basin cleaning that the chlorine in both the water

and the sediment, as returned to the river, has been neutralized.

The volume of solids discharged to the Potomac River from the

six basins is only one-half of the total volume of solids removed

from the water, which was originally taken from the river. At a

maximum, it represents less than 1 percent of the river flow on

days when we do the discharge.

With respect to the non-routine discharges for plant maintenance, the State of Maryland permits the aqueduct to discharge

raw water, that is untreated water, into streams and on lands that

cross 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

park property. Discharges of this nature seldom occur, about once

every 2 years, and last approximately 6 hours.

Two other discharges are allowed under the permit. One is to

drain ground water from under the sedimentation basins directly

to the Potomac River and the other is to drain water from another

large conduit to Rock Creek. That discharge might occur only once

in 10 years and involves sediment-free, clear, but unchlorinated

water.

All of the Washington Aqueduct’s discharge points or outfalls are

properly regulated by and comply with Federal and State permits.

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At this time, there are no known adverse effects from these discharges from the C&O Canal National Historic Park property.

The next issue you asked us to discharge is the impact of the

sediment discharges, if any, upon the shortnose sturgeon. That particular question is the subject of current litigation brought by the

National Wilderness Institute against several of the Federal agencies testifying here today. Accordingly, I will constrain my remarks.

In accordance with the Endangered Species Act, consultation

among the Federal agencies regarding the shortnose sturgeon is

ongoing at this time. I can mention that at the request and direction of the EPA the Army Corps of Engineers contracted for two

significant studies to determine the impact, if any, of the sediment

discharges upon the aquatic life of the Potomac River.

Based on the study plan coordinated with the Fish and Wildlife

Service and approved by EPA Region 3, and performed in accordance with the accepted scientific procedure and analysis the most

recent study was completed in October 2001 and sent to these

agencies.

Based on that and other information provided to EPA Region 3,

they have recently issued a draft NPDES permit relating to Washington Aqueduct solids discharges. The public comment period

closes on June 28, 2002 for that permit.

In addition, I would like to mention that we also provided a report to the Appropriations Committee on the 23rd of May that

summarized all the reports and studies that the Corps has conducted and alternatives we have examined in regard to the Washington Aqueduct. I have attached a copy of that report to my written testimony for your information.

[The report referred to follows:]

24

WASHINGTON AQUEDUCT SEDIMENT DISCHARGE—REPORT TO CONGRESS

Purpose of Report

This report has been prepared in response to House Report 107–216 (page 60) and

Senate Report 107–85 (page 65) accompanying the District of Columbia Appropriations Act, 2002, Public Law 107–96. These two documents direct the Washington

Aqueduct and Environmental Protection Agency (EPA) to submit a report to Congress on the environmental impacts of sediment discharges from the Washington

Aqueduct drinking water plant into the Potomac River. The report should include

an analysis of options for handling the residual solids from plant operations including, but not limited to, off-site disposal and treatment at the Blue Plains Waste

25

Water Treatment Plant. The analysis should include estimated costs and possible

implementation schedules. In addition, the Blue Plains treatment option should include, in part, a description of how the proposed Combined Sewer Overflow Long

Term Control Plan tunnel system might be used to handle the discharge from the

Aqueduct.

Background

Because the issue of residual solids is one of long-standing interest, the analysis

contained in this report draws upon studies conducted as far back as 1977 and as

recent as last year. The report describes the processes by which the residual solids

are generated and the various alternatives that have been investigated over the

years. Some of the prior studies had the benefit of detailed engineering analysis

while others were discussed professionally but without the same level of specificity.

This report provides the Committee with an overview of Washington Aqueduct operations, a summary of many of the residual solids management options that have

been explored in past years, and a discussion of some of the options that might be

considered in greater detail in the future.

Overview of Washington Aqueduct Operations

Washington Aqueduct collects, purifies and pumps an adequate supply of potable

water to the District of Columbia, Arlington County and the City of Falls Church,

Virginia. Average daily production is approximately 180 million gallons. All costs of

the Washington Aqueduct’s operation, including capital construction, are borne by

the citizens of its customer jurisdictions. The last time funds were appropriated for

capital improvements was 1927, when the Dalecarlia plant was built.

Washington Aqueduct provides water for all users in the three named jurisdictions. Included in the service area are Federal Government facilities located in the

District of Columbia. In addition, water is provided to the Pentagon, National Airport, Arlington National Cemetery, and other Federal and military facilities in the

Aqueduct’s Northern Virginia service area. A fire in the Capitol Building in 1850

resulted in the Corps of Engineers mission to develop a water supply for the Federal

city. Providing safe drinking water for public health and sanitation, as well as reliable fire protection for the National Capital Region (as exemplified by Arlington

County’s response to fighting the fire at the Pentagon on September 11, 2001), remains the mission of the Washington Aqueduct.

Washington Aqueduct is a division of the Army Corps of Engineers Baltimore District. As a wholesale public water utility, it is regulated by Region 3 of the EPA.

It also has permits from the State of Maryland and the District of Columbia covering various aspects of its overall industrial operations.

All water treated by Washington Aqueduct and delivered to its customers comes

from the Potomac River. The treatment process employs three phases: sedimentation, filtration, and disinfection. Aluminum sulfate (commonly called alum) is used

as the coagulant in the sedimentation process. The solids that collect in the six sedimentation basins (two at Georgetown and four at Dalecarlia) are a combination of

the added coagulant and the naturally occurring sediment that is being transported

by the Potomac River at the time it is diverted to the raw water reservoir, which

is known as the Dalecarlia Reservoir.

Of the sediment taken in with the river water, approximately half of it settles

naturally (i.e., without the use of a coagulant) in the Dalecarlia Reservoir. This sediment never goes back to the Potomac River. Some of it is removed mechanically and

deposited on land surrounding the reservoir, and the remainder is left to accumulate

in the reservoir.

The sediment that does not settle in the Dalecarlia Reservoir enters the treatment

process. The two Georgetown sedimentation basins support the McMillan treatment

plant, and the four Dalecarlia sedimentation basins support the Dalecarlia treatment plant. The dosage of alum used to coagulate and settle the sediment varies

with the turbidity of the incoming raw water from the Dalecarlia Reservoir. The

sediment and alum (a combination referred to as ‘‘residual solids’’) must be cleaned

from the sedimentation basins periodically to ensure the ability of the sedimentation

basins to function as designed. The current technique used to clean a sedimentation

basin is to release the contents through a pipe to an outfall on the Potomac River.

Some additional flushing water is used to eject the sediment remaining after the

initial draining. This process requires approximately 24 hours to complete for each

basin.

Under normal operating conditions, there could be 16 discharges from the

Dalecarlia plant each year (four times a year for each of four basins) and four to

six discharges per year from the Georgetown basins (two to three times a year for

each of the two basins). There are three discharge pipes. Material is discharged diVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 80271.TXT HRESOUR1 PsN: HRESOUR1
26

rectly into the Potomac River from the discharge pipe that serves the basins at the

Dalecarlia plant. The two discharge pipes that serve the Georgetown basins terminate in a headwall approximately 75 feet from the river bank, and the discharged

material flows through a channel (which is normally dry except during the two or

three annual discharges) into the Potomac River. These pipes all transit the C&O

Canal National Historic Park, a unit of the National Park Service. The discharges

are timed to coincide with river flows that are determined to provide the best sediment transport in the free flowing river.

Environmental safeguards concerning river flows at the time of discharge were

added in 1983. These safeguards required the presence of certain river levels to ensure proper reintegration of solids with the flowing river. This altered the cleaning

techniques that had been used at Georgetown since the McMillan plant was built

in 1903 and had been in effect at the Dalecarlia plant since it was competed in the

late 1920’s.

There is another element of the water treatment process that produces particulate

matter. That is the backwash from the filters. At the Dalecarlia plant there are 36

filters. Each filter is cleaned by a process that temporarily reverses the flow thereby

flushing out sediment trapped in the media. On average, a filter is backwashed

every 96 hours. Given the number of filters, the process occurs several times a day.

As explained later, even though the plant was designed in 1925 to discharge sediment and the flushing water to the Potomac River, that procedure has not been

used since 1982. The McMillan treatment plant filter backwash has never gone to

the Potomac River. It is handled on site at McMillan.

Prior Studies of Alternative Sediment Discharge Methods

Over the years that the Washington Aqueduct has been operating its treatment

plants, there have been several studies undertaken to look at the chemical and

physical effects of the solids periodically discharged into the Potomac River. Washington Aqueduct has also studied alternatives to the discharge of these solids to the

Potomac River.

In 1976, a contractor to Washington Aqueduct (Camp Dresser & McKee, Inc.) undertook a comprehensive study of alternatives. Its report on ‘‘Water Treatment

Plant Waste Disposal Alternatives Dalecarlia Water Treatment Plant and Georgetown Reservoir’’ was issued in 1977. That report dealt with disposal alternatives of

particulate matter involved with two processes: the filter backwash and the sedimentation basin cleaning. Two options were identified for the filter backwash at

Dalecarlia. One option was to continue discharging into the Potomac River (which

was the practice at the time). The other option was to recycle the discharge

In 1977, Washington Aqueduct adopted the ‘‘recycle’’ option from the report and

began the design that led to the construction of a project to collect the filter backwash sediment and the flushing water and route it to the Dalecarlia Reservoir. That

project consisted of the construction of a large underground chamber to initially contain the discharge. A collocated underground pumping station was built to send the

sediment and the water back to the Dalecarlia Reservoir. When the project was

completed in 1982, the filter backwash discharge to the Potomac River ceased.

Seven options were identified for the sedimentation basin solids. Each option is

listed below, along with the estimated capital construction/annual operating costs

shown in parentheses. The cost estimates are in 1977 dollars. The estimates do not

represent the outcome of a complete design of each option considered at that time.

They are reported here to provide a relative magnitude of costs among options considered at that time. The options and cost estimates are as follows:

1. Continue to discharge solids to the Potomac.

2. Collect and discharge daily 0.75% solids to Potomac at Dalecarlia and Georgetown ($11,339,350/$1,071,550).

3. Collect, thicken and discharge daily 3% solids to DC Sewerage System from

Dalecarlia and Georgetown ($14,004,950/$1,536,410).

4. Collect, thicken, dewater (centrifuge) and dispose residue to land application

(existing excavation) ($14,276,750/$2,695,670).

5. Collect, thicken, dewater (centrifuge) and dispose residue to landfill (sanitary)

($15,658,000/$2,567,670).

6. Collect, thicken, dewater (filter press) and dispose residue to landfill

($19,471,100/$3,142,140).

7. Collect, thicken, dewater (filter press) and dispose residue to land application

($19,471,100/$3,230,340).

After discussions with EPA in the late 1970’s, the practice of discharging residual

solids to the Potomac was retained. As indicated earlier, a river flow condition was

added to the National Pollutant Discharge Elimination System (NPDES) permit

issued by EPA in 1983. That condition was intended to ensure good reintegration

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of the sediment into the flowing river and limit the localized sedimentation effects

in the river by the introduction of the residual solids. In the NPDES permit issued

to Washington Aqueduct in 1989, EPA Region 3 required that a study be undertaken to determine the toxic and benthic effects of these periodic discharges on the

Potomac River. The Dynamac Corporation completed that study in 1993 after two

years of fieldwork, modeling studies, and laboratory testing. It found that there

were no toxic or benthic effects.

In September 1994, Washington Aqueduct contracted with Whitman, Requardt

and Associates (WR&A) to begin design of a method to collect, convey and dewater

residual solids generated by the operations of the Dalecarlia water treatment plant,

the Georgetown basins and the Dalecarlia Reservoir. The final design memorandum

(conceptual design and cost estimates) was completed in November 1996. That concept involved centrifuges and trucking from the Dalecarlia water treatment plant

site. It included an alternative to continuously dredge the Dalecarlia Reservoir to

remove the sediment that naturally settled out, dewater it, and truck it off-site

along with the residual solids recovered from the sedimentation basins at Dalecarlia

and Georgetown. The estimated capital construction costs and annual operating

costs of this concept (in 1996 dollars) were $63,387,340 and $3,387,000, respectively.

The design memorandum was prepared based on assumed discharge criteria of 30

milligrams per liter for both aluminum and iron. Washington Aqueduct made that

assumption in order to study the option that had the most complex outcome that

might be expected if it were executed in response to an EPA permit decision. Other

options were not developed in that design memorandum. Development of such a design memorandum generally takes 12 to 18 months as fundamental design decisions

are evaluated for cost and function. Because of the major undertaking such a project

would represent, the Corps of Engineers would be required to follow the provisions

of the National Environmental Policy Act (NEPA). Several months would be required to prepare a report, which evaluates the environmental consequences of the

full menu of alternatives, in addition to the preferred alternative being proposed.

Additional time would then be needed to address concerns raised during the public

comment period before proceeding on with the plans and specifications. Plans and

specifications for projects of this scope usually take two years to complete. Upon

award of a contract for a process and facilities of the kind evaluated in the design

memorandum, it would take at least three years of construction before the facilities

would be placed into operation. Other alternatives could take more or less time to

construct.

The WR&A design memorandum project focused on the collection and movement

of the solids for processing at the Dalecarlia plant. Their analysis favored centrifuges over filter presses. The alternatives that involved a lesser concentration of

solids discharged from the basins to the Potomac River or the placement of those

solids into the District of Columbia wastewater collection system were not investigated. The latter decision reflected a conclusion reported in an exchange of letters

with the District of Columbia Department of Public Works (the agency responsible

for wastewater operations at that time) that there was no capacity for these solids

at Blue Plains.

In December 1993, after a malfunction in the treatment process at the Dalecarlia

treatment plant, EPA issued a precautionary boil water advisory. Even though later

analysis of the suspect water revealed there was no contamination, this incident

heightened concerns about the District of Columbia drinking water system. Both inhouse and consultant studies produced a substantial capital project array that

would be necessary to ensure long term safe and reliable operation of the water

treatment facilities. Paying for these improvements was a major issue, since the

Corps of Engineers relies on the Washington Aqueduct customers to fund all aspects

of its operations.

Design work on these improvements was suspended as a result of the uncertainty

of the Corps of Engineers’ continued ownership and operation of the Washington Aqueduct and the financial condition of the District of Columbia at that time. The conceptual design also generated considerable opposition from the residential communities surrounding the Dalecarlia site. These communities were, and continue to be,

concerned about the truck traffic required to transport dewatered solids from the

facility. A provision in the Safe Drinking Water Act Amendments of 1996 (Section

305) gave the Army the ability to let the wholesale customers recommend what entity should continue water production operations. That same provision also allowed

for a three-year period (Fiscal Years 1997 through 1999) in which Washington Aqueduct could borrow a total of $75,000,000 for necessary capital improvements. However, a final provision in that legislation, while not prohibiting the expenditure of

those funds on a new solids handling regime, effectively put the emphasis on 43 separate projects funded by Treasury Department loan funds. These projects ranged

28

from studies, to infrastructure repairs, to whole new process systems, all of which

focused on making the water production process safer, more reliable, and more cost

effective for the public. In May 1998, the wholesale customers and the Army signed

a Memorandum of Understanding for the Corps to continue ownership and operation of the Washington Aqueduct water treatment facilities

Between 1996 and 1999, the Washington Aqueduct, its customers, and EPA Region 3—assisted by the District of Columbia Department of Consumer and Regulatory Affairs (functions now integrated into the D.C. Department of Health) and

U.S. Fish and Wildlife Service and National Marine Fisheries Service—developed a

comprehensive water quality study plan to again study the effects of the periodic

solids discharges on the Potomac River. EPA Region 3 approved the study plan in

June 1999 and work began. The study was completed in October 2001 and Washington Aqueduct sent it to EPA Region 3 for its use in writing an NPDES permit

to replace the 1989 permit that had been administratively extended in the intervening years. EPA issued a draft permit for public comment on March 27, 2002.

The time from 1994 to the present was spent dealing with some very important

issues—issues critical to the safe, reliable and cost effective production of water

from Washington Aqueduct facilities to the benefit of customers in the District of

Columbia, Arlington County and Falls Church. A major ownership and operation decision was made. The customers asked the Corps to continue operations, as they

believed that significant operational improvements and businesslike practices made

it an excellent utility. The financial problems surrounding the District of Columbia’s

ability to support the wholesale water operations have cleared up with the establishment of the District of Columbia Water and Sewer Authority. The Treasury loans

have gone to construct many important process changes that improve the safety and

reliability of the water produced to enable it to be in compliance with emerging regulations. It was necessary for EPA to consider both water quality effects and best

management practices in issuing a draft permit. The new water quality study provided important information. First, any capital expenditure required to remove solids from the process will be governed by the technology-based, rather than the water

quality-based requirements of the Clean Water Act. Second, whatever future technical procedures or processes that may be used to modify the way the residual solids

are handled, the Corps’ studies conclude that the Potomac River is not significantly

affected by its present continued use.

Blue Plains Wastewater Treatment Plant Option

House Report 107–216 and Senate Report 107–85 asked for an analysis of options

and specifically identifies disposal at the Blue Plains Wastewater Treatment Plant

and use of facilities envisioned in the proposed Combined Sewer Overflow Long

Term Control Plan tunnel system to handle the discharge from the Aqueduct. The

Chief of the Washington Aqueduct has met with the general manager of the District

of Columbia Water and Sewer Authority (DC WASA) to discuss how the latter alternative might be added to the alternatives enumerated earlier in this report. The two

options that involve DC WASA will require extensive engineering and economic

study that exceed the time allotted by the Committees to respond to the House and

Senate Reports. It should be noted that a final Long Term Control Plan has not yet

been submitted to EPA (this is expected to occur later in 2002) and that any plan

developed by DC WASA will be subject to review and approval by EPA. The impacts

of additional solids loading on the Blue Plains Advanced Wastewater Treatment

Plant, the feasibility of handling these solids at the plant and the significant costs

of construction and operation of facilities that could be required have not been evaluated to the degree that any conclusion may be reached about the viability of this

option.

Dredging and Disposal Operations

Washington Aqueduct undertook a significant dredging operation of the Dalecarlia

Reservoir between 1996 and 1999. This project was necessary to increase the retention time of water in the reservoir to improve pretreatment—specifically the natural

sedimentation of particulate matter from the raw water. In the design of this

project, great care was taken to analyze the material being removed and to determine appropriate disposal sites. In that analysis, transportation routes became a

key factor. Because of the load limitations on MacArthur Boulevard from the

Dalecarlia site north into Maryland (which are due to the raw water conduits being

located directly beneath the roadway), truck traffic would have to be routed either

to Western Avenue or Massachusetts Avenue to go north. To go south, the route

would be MacArthur Boulevard to Key Bridge. Trucks are prohibited from using the

Clara Barton Parkway and have great difficulty negotiating the right turn at Arizona Avenue on to Canal Road in an attempt to get to Chain Bridge and into VirVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 80271.TXT HRESOUR1 PsN: HRESOUR1
29

ginia. Even though this operation to haul away the Dalecarlia Reservoir sediment

was conducted with great care, it proved to be a major concern for the safety and

quality of life of the community. It was evident that any permanent major trucking

operations from Dalecarlia would face significant obstacles.

Pipeline Alternative

Based in part on the dredging and disposal experience described above, another

alternative that might be considered is construction of a pipeline to a location some

distance from the Dalecarlia water treatment plant. Thickened solids would be

pumped through the pipeline to a storage location (e.g., an abandoned quarry) or

to a remote processing site for dewatering and subsequent disposal. This option also

will require extensive engineering and economic study (as well as site development).

This option and other options would need to be evaluated further using the results

of the water quality studies and best professional judgment to determine Best Conventional Technology/Best Available Technology for the Washington Aqueduct.

Time Required to Implement Options

After the engineering and economic studies of the various options have been developed, the environmental analysis, public involvement and decision-making process required by NEPA would take more than a year to complete. The amount of

time required for final design and construction would depend on the alternative selected, but would normally take approximately five years (two years for design and

three years for construction). No estimates on costs are available yet.

Draft Permit

Washington Aqueduct and its wholesale customers are evaluating the draft

NPDES permit that EPA Region 3 has issued for public comment. The Aqueduct

will work with EPA to clarify the elements of the permit that employ the principles

of best professional judgment in order to make a precise determination of Best Conventional Technology/Best Available Technology.

Mr. IZZO. The Army will continue to work closely with the EPA

and other Federal agencies to do what is best for the environment

and to ensure the availability and safety of the drinking water that

the aqueduct supplies to this region.

Again, I thank you for the opportunity to be here this morning

to apprise the Committee about the operations of the Washington

Aqueduct and to respond to your questions.

[The prepared statement of Mr. Izzo follows:]

Statement of Dominic Izzo, Principal Deputy Assistant Secretary of the

Army for Civil Works, U.S. Army Corps of Engineers

Mr. Chairman and members of the Committee, thank you for inviting me to testify before you today. I am Dominic Izzo, the Principal Deputy Assistant Secretary

of the Army for Civil Works.

You invited a representative of the Army here today to provide information on the

Washington Aqueduct and its legally permitted discharges. The Washington Aqueduct is a division within the Baltimore District of the Army Corps of Engineers, an

organization under my general supervision. 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, through the Aqueduct, the Army Corps of Engineers 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

30

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 its highest priorities.

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).

You invited us to address the effects of Washington Aqueduct sediment discharges

on the C&O Canal National Historic Park and the endangered shortnose sturgeon.

All water treated by the Washington Aqueduct comes from the Potomac River.

When water is withdrawn and brought into the treatment process, approximately

half of the naturally occurring sediment carried by the Potomac River settles out

in the Dalecarlia Reservoir and never returns to the Potomac River. The remaining

sediment is forced to settle in six large basins through the use of a coagulant. The

coagulant Washington Aqueduct uses is aluminum sulfate. In the ensuing chemical

reaction most of the aluminum and some of the sulfate remains with the sediment

in those basins while the clear water moves to the filtration and disinfection portions of the water treatment process.

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 drained to the Potomac

River in accordance with the terms of the NPDES permit issued by EPA Region 3.

At the last stage of the basin cleaning at the Dalecarlia treatment plant some finished water (i.e. drinking water) is used in fire hoses to push 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 available chlorine in the drinking water used to push out the solids reacts

with the sediment effectively using up all free chlorine potential. Since the issue of

chlorine in the discharge from the Dalecarlia sedimentation basins was raised in October 2001, the Aqueduct has been able to take actual samples of the sediment as

it is exiting the basin and find that, as expected, there is no free chlorine remaining

to react with any organic matter when that sediment returns to the Potomac River.

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 within a 24

hour period. From the most often drained basins, the total volume of the discharge

would be in the range of 12 to 18 million gallons most of which is water. The total

volume of liquids and the suspended solids being discharged is at a maximum, well

less than 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 half of the total volume of solids that were removed from the water taken from

the Potomac River. The other half remains in the Dalecarlia Reservoir, which acts

as a pre -sedimentation basin before the raw water enters the formal treatment

process and is dosed with a coagulant.

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 there lasts 12–16

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

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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 feet 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 the Washington Aqueduct’s 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 us 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 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 the 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 was completed and provided to EPA Region 3 on October 5, 2001. 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 the Army and the

Corps that the sediments have a negligible effect upon the Potomac River.

EPA Region 3 issued a draft NPDES permit concerning Washington Aqueduct’s

sediment discharge in March 2002. The public comment period is open until

June 28.

In conclusion, the United States Army and the Corps of Engineers continue to

work closely with the EPA and other Federal agencies to provide independent,

thoughtful and scientific information for them to use in preparing permits and otherwise regulating the activities of Washington Aqueduct. Washington Aqueduct acts

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

Committee of the operations of the Washington Aqueduct and to respond to your

questions.

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Mr. RADANOVICH. Thank you very much, Mr. Izzo.

Next up is Mr. Ben Grumbles, Deputy Assistant Administrator

for Office of Water, Environmental Protection Agency

STATEMENT OF BEN GRUMBLES, DEPUTY ASSISTANT ADMINISTRATOR FOR OFFICE OF WATER, U.S. ENVIRONMENTAL

PROTECTION AGENCY

Mr. GRUMBLES. Thank you, Mr. Chairman. I am Ben Grumbles,

with the Environmental Protection Agency. First, let me convey

Administrator Whitman’s regrets for not being able to be here to

participate in this important hearing.

The second thing, right off the bat, I want to say perhaps now

more than ever this hearing is a very timely one, particularly when

newspaper stories raise questions that there is a lot of confusion

as to exactly what the situation is.

What I would like to do is address the situation and EPA’s role

in this important issue. I have to say that this morning there was

a headline in the Washington Times that said, ‘‘EPA says toxic

sludge is good for fish.’’

I would just like to say that that is absolutely untrue. That is

not the case at all. In fact, we are still trying to determine the

basis upon which that article was written and the document that

was relied upon.

We don’t even know that it was an EPA employee who said

something like that and it was certainly taken out of context. The

basic point is that EPA does not believe toxic sludge is good for

fish.

In the situation here, what we are talking about is permitting

under the Clean Water Act of sediments from the Washington Aqueduct. What I would like to do is just talk a little bit about EPA’s

role. EPA is the permitting authority in the District of Columbia

for Clean Water Act discharges and that is what we are addressing

here, the discharges that include the sediments from the basins in

the Dalecarlia and the Georgetown Reservoirs under the control of

the Corps of Engineers.

The NPDES permit, the Clean Water Act permit, that is currently in force, allows for the discharge of residual solids from

cleaning out the sediment basins used to treat water taken from

the Potomac River. State-issued permits throughout the Nation frequently allow such discharges, but when the receiving water body

is a high volume river such as the Potomac the permits limit the

discharges to high flow conditions when the river naturally contains a large quantity of solids.

As issued in 1989, the permit required the Corps to conduct a

study of toxicity of the discharge. The Corp’s contractor issued a report in February of ’93 concluding that there were no apparent

water quality effects from the releases of the discharge.

One of the points that we want to make and try to emphasize

here is that over this period of time, since the discharges haven’t

been occurring, we have not gathered, and we don’t believe there

is conclusive evidence, scientific evidence that there is a toxic effect

or an adverse water quality impact.

That doesn’t mean that we are not concerned about any kind of

discharges, sediments and residuals to the Potomac River or any

33

river. But the point is that some of the studies, including the study

in 1993, did not indicate apparent water quality adverse impacts.

Now, in early ’95 EPA prepared for comment a draft permit that

would have required the construction of a residual recovery facility

to dewater and remove solids from the treatment plant.

At the same time, Congress was drafting comprehensive legislation to amend the Safe Drinking Water Act and earlier drafts in

the law itself actually enacted included different provisions that

could have produced drastic changes in the financial and organizational structure of the aqueduct.

So, EPA, during that time, took from that, these Congressional

discussions, a clear message that it would be premature and inappropriate, even potentially wasteful, to issue an NPDES permit

during all those discussions since very much at issue was who

would own and operate and how the facility itself would be structured.

Let me address some of the fish issues in the remaining amount

of time that I have. EPA, the Corps and the wholesales customers

had an agreement on October 3, 1997, to undertake a detailed

study of the water quality effects. The study was vital to establish

a sound scientific basis for any new requirements in a re-issued

Washington Aqueduct permit.

Also, while the study was being developed, EPA entered into an

inter-agency agreement with Fish and Wildlife Service in April

1998 for help in developing interim discharge guidelines for the aqueduct sediments.

In March 1999, the Fish and Wildlife Service submitted in a report to EPA the results and recommendations and we believe those

recommendations from the expert panel are in large degree captured and reflected in the draft permit.

We also approved a plan for a discharge study in 1999 that you

have heard some reference to. The report itself was finalized on October 10, 2001. Based on the results of the study, EPA has concluded that the sediments appear to have a negligible effect upon

juvenile and adult fish in the Potomac River.

EPA has also concluded that the discharge is not acutely toxic

and that the chronic toxicity tests suggested that the discharge is

not currently affecting juvenile and adult fish.

Mr. Chairman, it is important in issuing and renewing permits

to look at the science and see exactly what the science is saying,

not to rely on anecdotal and news reports, but to really look at exactly what the results are.

The draft permit attempts to reflect that science, but also acknowledges, as you yourself have pointed out on numerous occasions, there are some real questions about the impacts. So, the

draft permit that is currently subject to the public comment period,

does include some additional safeguards.

I think the most important ones is that the permit itself includes

a requirement for a reduction in the sediments being discharged to

the Potomac River, an 85 percent reduction compared to the inflow

going into the plan of the raw Potomac River water.

Another important safeguard in the draft permit is the prohibition on discharges of the sediment during the spring spawning season, from February 15 through June 15.

34

Another provision is that there be monitoring for any detectable

levels of chlorine where processed water has been used to flush out

the sediment basins.

Another important safeguard is the requirement that there be a

study conducted on the actual presence of the shortnose sturgeon.

Some of the expert witnesses here today have also been addressing

that, that to date we have not seen this shortnose sturgeon show

up within 50 miles of the outfalls. But that doesn’t mean that that

is not a continuing area of concern that we want to continue to look

at. That is clearly an important message that needs to be conveyed.

So, the draft permit, we believe it is certainly not a final permit,

but we are looking forward to the comments, the basis of this hearing, to really get into the additional issues.

Mr. Chairman, the last thing I would like to say is that I know

Administrator Whitman takes very seriously some of the concerns

that some folks have raised about the potential impacts of the sediments, the possible presence of metals or toxics, but science hasn’t

borne that out yet.

But we are very concerns and continue to work with the other

agencies through consultation under the Endangered Species Act

and through gathering additional data to make sure that the sediment that is being discharged is not harmful to the aquatic environment.

Thank you very much, Mr. Chairman.

Mr. RADANOVICH. Thank you, Mr. Grumbles. Thank you for coming before the Committee. We appreciate your testimony.

[The prepared statement of Mr. Grumbles follows:]

Statement of Benjamin H. Grumbles, Deputy Assistant Administrator for

Water, U.S. Environmental Protection Agency

INTRODUCTION

Good morning, Mr. Chairman and Members of the Committee. I am Ben Grumbles, Deputy Assistant Administrator for Water at the U.S. Environmental Protection Agency (EPA). First, let me convey Governor Whitman’s regrets for not being

able to be here today to speak with this Committee. Second, I appreciate this opportunity to provide the EPA’s views on the Washington Aqueduct, and to discuss the

National Pollutant Discharge Elimination System (NPDES) permit required under

the Clean Water Act.

BACKGROUND

The Washington Aqueduct is truly unique. The history, ownership, operations,

regulation, and financing of the Aqueduct, coupled with the various responsibilities

of the Federal, State, and local agencies, and the District of Columbia, have presented—and continue to present—some interesting challenges.

Ordinarily, the States assume the primary authority for regulatory implementation and enforcement under the Clean Water Act (CWA) and the Safe Drinking

Water Act (SDWA), as Congress intended. Forty-nine States have primary enforcement authority for supervising public water systems under SDWA, and forty-four

States are authorized to carry out NPDES permitting responsibilities under the

CWA. EPA takes on the permit-issuing or primary enforcement authority that

States ordinarily assume only in those few situations in which a particular State

has not assumed this authority. Such is the case in the District of Columbia for both

the CWA and SDWA regulatory programs.

Two unique factors should be noted when discussing the Aqueduct’s compliance

with SDWA and CWA requirements. First, there is no other situation in the country

where a Federal agency is, by law, specifically assigned the role of providing municipal drinking water treatment—which, in this case, means serving over a million

customers in multiple jurisdictions. Second, as noted in the Senate Environment

and Public Works Committee’s November 1995 report on S. 1316—which became

the SDWA Amendments of 1996—‘‘The Corps of Engineers, as owner of the system,

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has no authority to finance capital improvement projects necessary to meet Federal

drinking water standards.’’ [S. Rpt. 104–169, p. 99]

Not only was the Aqueduct given a mission that is unique within the Corps (and

within the entire Federal Government as well), but its pursuit of this mission has

also been complicated by its lack of the same access to capital funds that traditional

municipalities or drinking water authorities have. Important Congressional initiatives to address the Aqueduct’s situation were being formulated and subsequently

implemented for some time while EPA was proceeding to revise the Aqueduct’s discharge permit for drinking water treatment residuals, and EPA has very properly

recognized and respected those initiatives.

EPA’S ROLE AS NPDES PERMITTING AUTHORITY

EPA is the authority in the District of Columbia responsible for issuing NPDES

permits, in accordance with Section 402 of the CWA, and for regulating public

drinking water systems in the District under SDWA, acting in both cases in a role

analogous to that undertaken by most States. EPA works closely with the Washington Aqueduct and its wholesale customers—the District of Columbia Water and

Sewer Authority, and Arlington County and Falls Church, Virginia—to insure that

the Aqueduct and its wholesale customers comply with all applicable requirements

related to drinking water in order to provide customers with high quality drinking

water. EPA also has issued NPDES permits for discharges from the Aqueduct into

waters of the U.S., and oversees the facility’s compliance with its permit.

Finally, EPA has responsibilities under section 7 of the Endangered Species Act

(ESA), including the obligation to ensure that its actions are not likely to jeopardize

the continued existence of listed endangered and threatened species or result in the

destruction or adverse modification of designated critical habitat. The ESA complements EPA’s and the States’ responsibilities under the CWA to restore and maintain the biological integrity of the Nation’s waters.

In general, the States and EPA (where a State lacks permitting authority) apply

the following procedures in issuing an NPDES permit. Upon receiving an application for an NPDES permit (or in this particular case, an application to renew the

permit), EPA begins to draft the permit. A major part of this work is preparing limits on the discharge of pollutants, based on technology requirements and water quality impacts. Limits may 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. The responsible EPA Region often consults

with Federal and State agencies about possible provisions before it completes the

draft permit. EPA also includes general conditions applicable to any NPDES permit,

and prepares a fact sheet (a detailed explanation of the permit and its terms) or

a statement of basis (a less detailed explanation). In the few States that lack

NPDES permit authority, prior to seeking public comment on the permit, EPA will

also send a draft to the appropriate State agency to certify that the permit will be

protective of the State’s water quality standards.

After EPA has completed the draft permit, the Agency sends out a notice of the

draft permit, a solicitation of comments, and the necessary information to request

a hearing. 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 the Agency’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 draft 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 them. At the same time, the Agency prepares a

final permit, making any changes needed to respond to the comments. If the

changes required are such that the original draft permit would not provide sufficient

notice of the revised permit’s contents, EPA will repeat the steps above, in effect

issuing a new draft permit and providing an additional public comment period. EPA

then issues the final 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 contained in section 7 of the Endangered Species Act (ESA) and 50

C.F.R. Part 402. Under section 7(a)(2), EPA must ensure, in consultation with the

36

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 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, if so, EPA requests either 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.

PERMITTING OF WASHINGTON AQUEDUCT DISCHARGES

The Corps owns and operates the Washington Aqueduct facility. The functions of

the facility include the collection, purification, and pumping of an adequate supply

of clean drinking water for the District of Columbia, Arlington County (VA), and the

City of Falls Church (VA). The Washington Aqueduct provides the drinking 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, ‘‘WASA’’ (for the District

of Columbia), Arlington County, and the City of Falls Church (the ‘‘Wholesale

Customers’’). Drinking water distribution is the responsibility of the Wholesale

Customers.

The 1989 Permit and Its Revision

On April 3, 1989, EPA reissued NPDES Permit No. DC 0000019 to the Corps for

the Washington Aqueduct facility, effective date May 3, 1989. (EPA had issued the

original permit in 1983.) The contents of this permit were devised on a basis similar

to that used by States in issuing many permits throughout the country—on the permit writer’s Best Professional Judgment, which is used to determine what limitations to apply in the absence of relevant Effluent Limitation Guidelines. In this

case, the NPDES permit allows for the discharge of residual solids from cleaning

out the sedimentation basins used in filtering water withdrawn from the Potomac

River. State-issued permits throughout the nation frequently allow such discharges

when the receiving water body is a high-volume river such as the Potomac. The Aqueduct permit does not require any treatment of the discharge, but limits the timing

of the discharges to the Potomac to high flow conditions, when the river naturally

contains a large quantity of solids.

The permit currently in use 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 Aqueduct to meet a pH level of not less than 6.0 standard units nor greater than 8.5 standard units. At the time of the discharge, the Aqueduct must take monitoring samples of pH, Total Suspended Solids, Total Aluminum, Total Iron, and Flow, to provide EPA, through Discharge Monitoring Reports, a representation of the discharge’s volume and nature.

As issued in 1989, the NPDES permit required the Corps to conduct several studies on the toxicity of the discharge. The Corps’ contractor completed the initial studies and issued a report in February 1993, concluding that there were no apparent

water quality effects from the release of the discharges.

The 1989 permit had an expiration date of May 2, 1994. The Corps applied for

a new permit before the expiration date, and under 5 U.S.C. §§ 558(c) and 40 C.F.R.

§§ 122.6(a), the prior permit continues in effect by operation of law pending the

NPDES authority’s (here, EPA’s) decision to issue a new permit.

In early 1995, EPA prepared a draft permit for comment, and sent copies to the

District of Columbia and the Aqueduct. In February 1995, the Wholesale Customers

and the Aqueduct stated their significant concerns with proposed new conditions in

the draft permit that would limit the concentrations of Iron, Aluminum and Total

Suspended Solids in the Aqueduct’s discharge. These limits would have required the

construction of a residual recovery facility. This is a facility built adjacent to a

37

drinking water treatment plant to dewater the solids (largely silt and organic material) removed from the water during coagulation and filtration, which occur prior

to disinfection. Depending on the composition of the dried solids, they are either

used for some commercial purpose (directly or after further treatment) or trucked

to a landfill for disposal.

The Wholesale Customers expressed concern that the cost of such a facility would

be unaffordable for many and excessive in relation to what they and the Aqueduct

considered were hypothetical or vague environmental benefits from a recovery facility.

As EPA was considering these concerns, Congress was drafting comprehensive

legislation to reauthorize and reform the Safe Drinking Water Act. Contrasting bills

had passed both the House and Senate in late 1994, but the 103rd Congress had

adjourned before a compromise agreement could be reached. With this base of prior

action to build on, a number of locally significant issues, like the future of the Aqueduct, were discussed at a relatively early point in the 104th Congress. A March 31,

1995 SDWA discussion draft of Sen. Kempthorne (then Water Subcommittee Chairman on the Senate Environment and Public Works Committee) included a provision

authorizing the Corps to borrow ‘‘such funds as the Secretary of the Army determines are required to finance capital improvements for the Washington Aqueduct.’’

The relevant provision in Sen. Kempthorne’s June 26, 1995 discussion draft took the

form that was included in S. 1316 as passed by the Senate in November 1995.

Congressional discussions of the Aqueduct’s financial situation were occurring at

the same time as the Wholesale Customers and the Corps were questioning the cost

and environmental benefits of the draft permit. At least one clear message seemed

to emerge: that EPA should not issue an NPDES permit that would preempt or prematurely direct the Aqueduct’s capital investment priorities separate from, ahead

of, or in conflict with how Congress might direct the Aqueduct to address its many

capital needs in the SDWA Amendments.

As a result, in April 1996, EPA agreed to delay the issuance of the permit. This

was consistent with both the 1995 Senate-passed provision and Section 306 of the

SDWA Amendments (Public Law 104–182) enacted August 6, 1996, which directed

the Aqueduct and its Customers to explore the feasibility of turning over the ownership and operations of the Aqueduct to a non-federal entity.

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.’’

On May 5, 1998, the Corps and the Wholesale Customers signed a Memorandum

of Understanding (MOU). This MOU included their joint ‘‘determination that a desirable option is for the ownership, operation, maintenance, and management of the

Washington Aqueduct to remain with the Army, ...and for the creation of a stable

and mutually beneficial partnership ... between the Wholesale Water Customers and

the Corps of Engineers.’’ Section 306(e) authorized the Corps to borrow $75 million

over three years for Aqueduct capital improvements; the Congressional Budget Office cost estimate for S. 1316 in Senate Report 104–169, referenced above, states

that ‘‘[t]he Corps estimates that the modernization would cost about $275 million

in 1995 dollars.’’ [p. 111] However, the Wholesale Customers’ recognition of their responsibility to help finance Aqueduct capital improvements, while not yet applied

in practice, should finally enable the Aqueduct to finance a comprehensive, longterm program of asset management, including ongoing regulatory compliance.

Fish Issues

After discussions among the Corps, EPA, and the Wholesale Customers, these

parties agreed on October 3, 1997, that contractors for the Wholesale 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 results of

the Study, completed last Fall, are discussed later in this testimony. 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

38

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. EPA believed this study was necessary to establish a scientifically-sound

basis for any new requirements written into the reissued Washington Aqueduct permit. New effluent limits and special conditions in a revised NPDES permit could

mandate the expenditure of large amounts of ratepayer funds, and, taking the role

of a State agency responsible for long-term public water system supervision, EPA

recognized especially the challenges this would raise given the Aqueduct’s unique

financing issues.

While the study was being developed, EPA entered into an Interagency Agreement with Fish and Wildlife Service (’FWS’) in April 1998 for help in developing

interim discharge guidelines for the Washington Aqueduct sediments. The purpose

of this work was to determine whether or not there were any near-term cost-effective 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. 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, while EPA and the Corps pursued a long-term solution.

In March of 1999, the FWS submitted, in a report to EPA, the results and recommendations of the Fisheries Panel’s study, including that there should be no discharge in the Spring when anadromous fish spawn, and that rocks by one of the

outfalls should be moved to facilitate the flow and dispersion of the discharge into

the river.

On June 24, 1999, EPA approved the study plan for the Discharge Study developed in part with technical assistance from the FWS Environmental Contaminants

Branch of its Chesapeake Bay Field Office. 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 Wholesale Customers. EPA held public meetings and informational sessions attended by FWS,

most notably in the Spring of 2000 and on October 10, to explain the techniques

used during the collection of environmental data for the Discharge Study.

Field work for the studies began in August of 1999 and was completed in May

of 2001. The Discharge Study Report was finalized on October 10, 2001. Based upon

the results of the Study (which analyzed observations made over the 21 month field

study period) and other available information, EPA has concluded that the sediments appear to have a negligible effect upon juvenile and adult fish in the Potomac

River. EPA has also concluded that the acute toxicity studies showed that the discharge is not acutely toxic, and the chronic toxicity tests, while not conclusive,

seemed to support a judgment 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 potential presence of shortnose

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 has prepared a draft permit that goes beyond

the present permit requirements to protect the river and its living resources.

Draft Permit

Draft permit number DC 0000019 was issued by EPA Region III on March 28 for

public comment. It contains several new provisions including:

• A prohibition against the Washington Aqueduct discharging during the spawning season for the native fish of the river, which runs from February 15 to June

15, unless specifically allowed to do so by EPA because of emergency conditions.

• A requirement that drainage times be lengthened for the two of the sedimentation basins at the Aqueduct, and that the amount of untreated process water

used to flush and clean these basins be increased, resulting in a less concentrated effluent.

• A requirement that, as a technology-based control, a conceptual study plan be

completed to identify engineering controls capable of removing a total of 85%

of all incoming solids, and that implementation of the plan begin within 5 years.

• A requirement to remove the rocks in the vicinity of one of the outfalls pursuant

to the recommendations of the Fisheries Panel.

• A requirement that the Washington Aqueduct perform a study, using an approved National Marine Fisheries Service (NMFS) protocol, to evaluate whether

shortnose sturgeon are present in District of Columbia waters of the Potomac

39

River. In its planning for and performance of this study, the Aqueduct must

consult with NMFS and the U.S. Fish and Wildlife Service.

In the preparation of this draft permit, EPA took several steps to ensure adequate

public involvement from all interested parties. This included informal consultation

with the D.C. Department of Health, and we believe that the District of Columbia

will certify under Clean Water Act Section 401 that the new permit complies with

D.C. Water Quality Standards.

Informal consultation with the FWS and NMFS—to ensure that endangered species and habitat are protected—has also occurred, with the constructive results discussed in this testimony. In addition, since the State of Maryland and the Commonwealth of Virginia share the waters of the Potomac with the District of Columbia,

they too were provided the opportunity to comment on the draft permit. EPA and

the Washington Aqueduct also hosted a public meeting on March 26 to explain to

local community members the provisions in the draft permit. Finally, pursuant to

requests from both Congress and the Washington Aqueduct, the public comment period for the draft permit, initially scheduled to run until Monday, April 29, was extended by EPA to run until June 28.

ESA Consultation

The ESA provides for consultation with the appropriate Federal wildlife agency

when a Federal action may affect endangered species. The ESA regulations give a

Federal Agency two options for consultation: informal or formal. As provided by the

regulations, informal consultation is designed to determine whether formal consultation is necessary.

EPA has been engaged in ‘‘informal’’ consultation under the Endangered Species

Act with the National Marine Fisheries Service (NMFS) for about a year, concerning

the issuance of the NPDES permit for the Washington Aqueduct and possible effects

on the Federally-listed endangered shortnose sturgeon. While the draft permit’s prohibition on discharges during spawning season was designed to protect fisheries in

the river, EPA and NMFS have this month agreed to enter into formal consultation

to determine the effects of the limited potential for emergency discharges from the

Aqueduct on shortnose sturgeon if sturgeon were to be present at this location during such emergency discharges. According to NMFS, there are no data documenting

the presence of sturgeon in waters affected by the discharge or within 55 miles of

those affected waters. Because additional data gathering would be necessary to conclusively prove its presence or absence in those waters, EPA and NMFS are taking

a conservative approach by formally consulting, to determine the response to this

lack of information in the context of the draft permit. The NMFS is currently reviewing the matter, and will provide a Biological Opinion with recommendations to

EPA.

EPA will then address whatever recommendations are contained in the Biological

Opinion, and after review of, and response to, any comments received in the public

comment period, will issue the final permit. The length of time it will take to issue

a final permit depends on a number of factors, including when EPA concludes its

consultation with NMFS, the number and content of public comments received, and

results of Congressionally mandated consultation with the Customers.

CONCLUSION

In summary, by following the requirements of the Clean Water Act, the Endangered Species Act, and the Safe Drinking Water Act, EPA believes that we can issue

a new permit for the Washington Aqueduct that will protect the river’s ecosystem

and aquatic life.

I would like to thank the Members of this Committee for inviting EPA to participate in this important hearing. The Administration shares the Committee’s concern

for the preservation of our nation’s park system and protection of endangered species, and commends the Chairman for his interest in this particular issue.

This concludes my prepared remarks, and I would be happy to answer any questions that you may have at this time.

Mr. RADANOVICH. I am going to open it up with a few questions

and open it up to different members of the Committee for

questions.

I would start with Mr. Grumbles by asking the question, I have

a bit of concern over the permitting process that the EPA went

through. As you know, and I have just been informed by the Department of Commerce or NMFS that they have just entered into

40

formal consultation regarding the effects of the dumping on any endangered species including the shortnose sturgeon.

In your testimony you mentioned that you made the determination that it was not harmful to fish and wildlife and so therefore

the EPA determined it was allowed to proceed, although to my

knowledge the shortnose sturgeon has been listed since the 1970’s,

I think. It has been present in there. To my knowledge there has

never been any formal consultation going on.

Please explain your role, how you came to those conclusions, and

also your relationship, when you develop permits like this, do you

interrelate with NMFS on that and what has been NMFS’ response

to something like that?

Mr. GRUMBLES. A couple of points: The first one is that I think

for well over a year we have been engaged in ‘‘informal’’ consultation with NMFS over the presence and potential impacts to the

shortnose sturgeon.

I guess based on the ongoing questions and the fact that there

were still some issues that had not been fully resolved, and based

on an abundance of caution, recognizing that this is a situation

where you need to have a conservative approach and follow up with

more information, we agreed on June 13th to enter into a formal

consultation.

Now, all of this is in the context of EPA issuing a Federal Clean

Water Act permit. Now, the timeframe that we have set out is that

our comment period closes on June 28th. After that comment period closes, we will continue to be working with, certainly with

NMFS in terms of the formal consultation.

It may be, Mr. Chairman, based on the nature of the public comments and how we respond, if we recommend substantial changes

to the draft permit, we would then propose a second round of public

comment based on those changes. Then, in terms of the formal consultation with NMFS, which could be up to 135 days from June

13th, we would take their considerations and their comments into

account.

Perhaps by the end of the year—it just depends on the timeframe—we would be issuing a final permit.

Mr. RADANOVICH. I guess what is unclear to me is that the species was listed in the 1970’s, the shortnose sturgeon. How long is

the permitting of the dumping of the sludge into the Potomac been

allowed? I would guess that it has been about that long.

Why is it now that the EPA is finally engaging itself, and it may

be a question for Mr. Keeney as well, finally there is some formal

consultation to find out that while this dumping is going on where

it is known to be a habitat for an endangered species, have you finally waited this long to get into formal consultation.

We are glad of the fact that you are, but why did it take so long?

Mr. GRUMBLES. I think your question is a fair one and I think

the response is that while understanding that the shortnose sturgeon has been listed for quite some time, the real question was the

geographic proximity of the sturgeon and the relevance of it to the

precise locations of the outfalls.

Mr. RADANOVICH. It has been known that that is potential habitat, where the sludge is being dumped, right? I mean that is obvious to everybody.

41

Mr. GRUMBLES. The information that I think we had was that

back in the late 1800’s there was a spotting of shortnose sturgeon

in the area, and based on the information I have from EPA, there

had not been any more recent sightings until we get to the 1996

one spotted about 50 miles from the outfall itself.

So, there wasn’t any compelling, convincing scientific evidence

over the decades that the shortnose sturgeon actually was within

an area where it could be impacted.

Mr. RADANOVICH. But the point under the law is that if it is potential habitat, you have to treat it as if the endangered species is

present. That is what the law reads.

I will conclude my round of questions by giving you a couple of

examples. In 1997, in January in California, there was a flood

along the entire west coast. A levy broke and killed three people.

The story behind it was that the water agency that knew that the

levy was weak was prohibited from going in and effecting repairs

to protect human life, because it was the habitat of the endangered

Elderberry Bark Beetle. And there was absolutely no evaluated

that that bark beetle was present. But it was known to be the habitat of one, so they were kept from all that time, up until the flood

hit and killed three people, from going into that are because it was

a suspected habitat.

Another perfect example is what happened up in Klamath recently with the Sucker Fish in the Klamath River that is known

to be the habitat of the Sucker Fish. The Sucker Fish wasn’t

present. Nevertheless, not your agency, but a different Federal

agency came in and shut off water to 1200 farmers that year, bankrupting most of them, because it was the known habitat of an endangered species.

This is why we bring this up in this case, because over 25 years,

ever since the shortnose sturgeon was listed, this area where the

dumping is occurring is a known habitat of the endangered species

and under normal law that is applied in my area of the world,

there would have been a cease and desist order issued 20 years

ago.

Mr. Grumbles, I am done with my questioning. You can response

quickly. We are going to be asking a lot of questions, but I want

to give everybody else a chance to ask them.

Mr. GRUMBLES. Mr. Chairman, I want to add that just because

it is potential habitat doesn’t mean that consultation is necessary.In fact, if you look on the map that I provided, there are

several rivers, like the York, the Patuxent and others along the

Virginia and Maryland coast that are looked at as being potential

habitat.

We have no evidence of shortnose sturgeon in those rivers. As

Mr. Grumbles said, it was only 1996. It went from 1899 until 1996

with no sturgeon known to be in the Potomac River. In 1996, there

were six sturgeon caught or found to be in the river. Since then,

we have been involved in consultations with EPA.

Mr. RADANOVICH. Not formal consultation but—

Mr. GRUMBLES. We normally start with informal consultations

unless we have reason to believe that formal consultations are necessary and we did not at that point.

42

Mr. RADANOVICH. Did the fact that this hit the press and has become quite an issue now encourage the department to go into formal consultation?

Mr. GRUMBLES. I think our discussions have reached the point

with EPA that EPA felt that formal consultations were appropriate.

Mr. RADANOVICH. Thank you. I turn my time over to Ms.

Christensen.

Ms. CHRISTENSEN. Thank you, Mr. Chairman. I want to welcome

Mr. Murphy, our Deputy Director of the National Park Service

with whom I have had several meetings. It is also nice to have you

here with us this morning, Tim.

Mr. KEENEY. Thank you.

Ms. CHRISTENSEN. I have a couple of questions for Interior. One,

does the sediment discharged from the Dalecarlia and Georgetown

water treatment facilities impact the National Park Service property at any point before it reaches the Potomac River?

Mr. MURPHY. Yes, there is a section up about 75 feet where the

effluent crosses the National Park Service land and then it also affects the river bed that is the responsibility of the National Park

Service as well.

Ms. CHRISTENSEN. So, do you have authority to stop that impact?

Mr. MURPHY. That is something that our solicitors started taking

under advisement from the last hearing in October and the solicitor

has just completed a draft review which I have not a chance to review myself and that draft opinion from the solicitor will give us

a better idea as to whether or not we have the authority to stop

it unilaterally.

Ms. CHRISTENSEN. In your view has the U.S. Fish and Wildlife

Service, which usually is very aggressive in my experience, complied with statutory responsibilities in the sense of the sturgeon in

the Potomac?

Mr. MURPHY. It is our opinion that it has. As you know, NMFS

has the responsibility for, in this case, in the Potomac River. But

it is our opinion, as I stated in my testimony, that the United

States Fish and Wildlife Service has pursued this consistent with

its authority, but as expressed earlier in my testimony, they feel

that there certainly is an opportunity here for further review and

for additional studies to be done to see what the exact effects are.

We are working with EPA to see that that is done. As I said in

my testimony also, the U.S. Fish and Wildlife Service would be

happy to provide technical assistance.

Ms. CHRISTENSEN. Did they not fully comply with their responsibilities? Why now do they feel the need to perhaps look at it? Is

it because of the fact of these hearings or is it because something

was found in the science that indicates that they need to pursue

it further?

Mr. MURPHY. I think what we are saying here is that as additional information becomes available, particularly when these permits come up for review, it gives an opportunity for us to take an

additional look at these and as new information comes up and

questions are asked, I think an agency appropriately responds by

saying, well, perhaps we really need to take a closer look at this.

I think that is what the Fish and Wildlife Service is doing here.

43

Ms. CHRISTENSEN. Mr. Grumbles, with respect to the recommendations, and I know you said it, I am just asking for clarification, the recommendations of the U.S. Fish and Wildlife Service

that have been incorporated into the draft permit, the ones that

has been recommended thus far. So, for example, even though

there is no evidence of impact, they had recommended, for example,

that it might be prudent to mitigate any possible impact on the

shortnose sturgeon.

I think you said in your testimony that you had incorporated, despite the fact that there was no real evidence of adverse impact on

the sturgeon, that you had incorporated the Fish and Wildlife Service recommendations.

Mr. GRUMBLES. I think that we have been in the draft and we

are certainly not locked into concrete on that.

Ms. CHRISTENSEN. The new draft?

Mr. GRUMBLES. In the draft what we have been doing is trying

to incorporate Fish and Wildlife Service or Marine Fisheries Service concerns, basically the comments with respect to the spawning

season, the ban on that. That is a specific example of something

that we have incorporated in the draft permanently.

Ms. CHRISTENSEN. Well, I just wanted to establish that where

Fish and Wildlife Service had fulfilled its responsibilities that were

incorporated, just to clarify that.

Back to Deputy Director Murphy, if you feel that more scientific

evaluation on these issues should be completed, which agencies

other than Fish and Wildlife Service should do that work? And is

that work required by Clean Water Act or some other statute?

Mr. MURPHY. Let us see. The first part of your question is which

other agencies should be involved. As I said earlier, we would welcome additional studies and actually would request that additional

studies be done by EPA and by the Corps and that we would provide whatever technical assistance was necessary to facilitate those

additional studies and additional data being collected.

The second part of your question was? I’m sorry.

Ms. CHRISTENSEN. Would the work that you are suggesting

might need to be done be required under Clean Water Act or some

other statute and which statute?

Mr. MURPHY. I can’t answer that directly. I would defer to EPA

on the answer to that as far as exactly what statute it would be

under. I can answer the question with respect to the National Park

Service’s own regulations which get at harm being done to the National Park Service’s resources and our statutory responsibility to

take action if we believe that harm is being done to our National

Park Service resources.

Under the statutes that govern the National Park Service, if

there is data that shows that there is harm being done, of course

we would take the appropriate action.

Ms. CHRISTENSEN. Do we have that data?

Mr. MURPHY. That is what we are asking for, and additional

studies.

Ms. CHRISTENSEN. Perhaps, Mr. Chairman, we could ask that

when that study is completed that the results be forwarded to the

Subcommittee?

Mr. RADANOVICH. That was done in 1998.

44

Ms. CHRISTENSEN. This is the study that is being done on the impact of the effluent on the Park Service property.

Mr. MURPHY. Well, let me provide clarification. What we are asking, we just made comments to the Environmental Protection Agency, which we just provided to the Committee. In those comments

we ask that additional studies be done. Once those studies are carried out or done, which we would be happy to assist in and facilitate them, we could provide additional information. But those studies haven’t been completed yet.

We are asking, as part of our comments to EPA, that this be

done.

Ms. CHRISTENSEN. Thank you. The next up for questions is Mr.

Otter as soon as he makes his speech. Do you want to go ahead?

Shall we let Tom go first?

Mr. Osborne.

Mr. OSBORNE. Thank you. Well, I will stall while Butch gets

here.

I appreciate your being here this morning. I would like to just

mention to you that I have some knowledge of the Endangered Species Act with regard to the Platte River in Nebraska. The only endangered species we are required to try to protect is the Pallid

Sturgeon and, to my knowledge, the Pallid Sturgeon does not inhabit the Platte River.

This particular section over in the middle of Nebraska, I don’t

believe a Pallid Sturgeon has ever been seen there, but it does exist

in the Missouri River, a couple of hundred miles downstream. So,

it does seem to me that even though you may have not observed

the shortnose sturgeon in this particular area that it is not without

precedent that the Endangered Species Act is very far reaching and

sometimes if it is in the same watershed, there is some application.

I guess the question that I would have is simply irrespective of

the Endangered Species Act, does the dumping of sludge into a

river such as the Potomac, is that acceptable? I mean we have seen

rather graphically what it has done to some birds and some animals. If something like this were done in the Yellowstone River,

Yellowstone National Park, would it fly?

Again, some of us are a little paranoid, but sort of feel like

maybe western States are treated a little differently. It just doesn’t

make sense. I can’t envision something like that occurring in some

of our western rivers and something not being done rather dramatically.

So, do you have any response to that, I mean the impact on birds

and animals, whether this is truly being administered evenhandedly across the board? I am just interested in your reaction

and any one of you who would care to respond.

Mr. GRUMBLES. Congressman, I would be happy to respond first.

The response is that it is not appropriate to allow or to tolerate the

discharge of toxic sludge into any water body. I think that is a general statement.

EPA’s position, and the way EPA implements the Clean Water

Act is that we have on occasion, it is not just limited to the Washington Aqueduct, but there are drinking water treatment facilities

throughout the country in various States that do have these residual solids, sediment.

45

I wouldn’t call it sludge. In my mind sludge is more associated

with sewage sludge, which is not at all what is at issue here. But

there are drinking water treatment facilities in other States

throughout the country that are authorized, subject to conditions

and limitations of various types, depending on the nature of the

water body, to discharge the solids into a receiving water and do

so under the parameters of a Clean Water Act permit.

Now, as you point out, there can be some questions and one of

the issues as to whether or not a permit gets issued is exactly what

the impacts will be, not just on the water column, the quality of

the water, but on the fish and wildlife that are present in the

water body.

One of the questions, I think, does boil down to, in terms of the

intersection between the Clean Water Act and the Endangered

Species Act, as the Chairman was raising, is getting a handle on

what is the potential habitat of particular species, whether it is the

Pallid Sturgeon or some other species that may or may not be in

the receiving water. That is something that the permit write would

have to factor in in consultation with NMFS and the Fish and

Wildlife Service.

It would be a significant factor in whether or not to issue a Clean

Water Act permit.

Mr. KEENEY. Mr. Osborne, I might add a few things here. First

of all, NOAA Fisheries, we believe, applies the ESA consistently

wherever the species are listed. I can give you some examples of

other places along the east coast where we have done that. We

have taken actions to protect Atlantic salmon along the east coast;

sea turtles in the Atlantic Ocean, the Gulf of Mexico and western

Pacific. We are currently conducting Endangered Species Act status

review of Atlantic White Marlin.

We have also proposed designated critical habitat for Gulf Sturgeon in the Gulf of Mexico.

Also, I might add that on the west coast, as you know, under the

Endangered Species Act, endangered species may be taken, as long

as the action of the taking is not likely to jeopardize the continued

existence of the listed species.

Examples where takings have been permitted on the west coast

include spawning areas of threatened or endangered fish included

in the Northwest Forest Plan, numerous consultations with the

Federal Highway Administration on seismic retrofitting of bridges

in California, Oregon and Washington, and Department of Army

permits for in-stream mining along the Russian River.

So, I think that even though it may appear that there is an unequal application of the regulatory authority, I think it is more of

a matter of a historic legacy of development and industrial use,

where in the East there obviously is a much longer history of that

kind of activity. As a result, we have less habitat and many fewer

species.

Mr. OSBORNE. Thank you. I yield back, Mr. Chairman.

Mr. RADANOVICH. Thank you very much.

Mr. Udall.

Mr. UDALL OF NEW MEXICO. Thank you, Mr. Chairman. I appreciate members of the panel being here.

46

Mr. Grumbles, back to your statement on this has been done before. How many times? Do you have knowledge of how many times

the EPA has issued these NPDES permits and where you have a

regular discharge of sediment and chlorine into a waterway? Is this

a frequent occurrence around the country?

Mr. GRUMBLES. A couple of things. One is a general response and

then the other one is to try to get back to you with precise numbers

because I don’t have precise numbers readily available, but as a

general matter, there are States throughout the country, there is

not—I wouldn’t say it is anywhere comparable to the number of

wastewater treatment facilities, but there are numerous facilities,

drinking water facilities where they may have some alum or they

may have some residual levels of chlorine in the sediments or in

the solids, but through the Clean Water Act they are discharging

those sediments subject to conditions, constraints and requirements.

There are only a few States. As you know, in most situations it

is the State itself that is issuing the permits. There are only about

five or six, about six States where EPA itself is the permitting authority, that issues the Clean Water Act permits and that is the

situation here because of the District of Columbia. EPA is the—

Mr. UDALL OF NEW MEXICO. Your role is to oversee the consistency, though. You allow the States to issue the permits, but it is

your job to make sure that they are consistent overall so you can’t

just say, you know, ‘‘The States are doing it. We don’t care what

they do.’’

Mr. GRUMBLES. Oh, absolutely not. The States, in order to be

able to issue the permits under the Clean Water Act, they first

have to go through a process that can be fairly detailed and exhaustive, some might say. But it is a process where the State applies to the Federal EPA to receive the authority for the NPDES

permit program. They have to go through and make a lot of demonstrations.

One of the precise reasons for that is that under the Clean Water

Act there is a need for some overall Federal consistency so that

each State doesn’t have completely different standards and requirements.

Mr. UDALL OF NEW MEXICO. Could you get back to us? I mean

what I would like to know, I mean much has been made of the

charge that the west is being treated differently than the east. I

mean, I would really like to know. Comparing this permit and the

amount of discharge in terms of the sediment, the volume of sediment, the chlorine, the alum that is in it, are there comparable situations around the country and where are they?

Not just saying there are some discharge; I am talking about

what are the comparisons?

Mr. GRUMBLES. There are some specific facilities such as in Nebraska and some of the other States that are discharging either on

an intermittent or a continuous basis some solids from the drinking

water treatment process.

I would say, and I know the Chairman recognizes this, because

of this particular facility, as Dom Izzo has pointed out, it is truly

unique in the sense that there is no other facility like it in the NaVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6602 80271.TXT HRESOUR1 PsN: HRESOUR1
47

tion in one respect in that it dates back, I guess, dates back to the

mid-1800’s.

It has a Federal agency running it and it has excess capacity in

terms of the sedimentation basins which leads to a more, as a natural process in terms of the operation of the facility, it means you

are going to have intermittent discharges as opposed to continuous

discharges.

So, there are some nuances with respect to this particular facility, but our basic point is that this is not a one-of-a-kind permit.

There are other permits throughout the country that do authorize,

with safeguards to minimize any potential toxic contaminants within those sediments that authorize the discharge of sediments from

a drinking water treatment plant into a water body.

Mr. UDALL OF NEW MEXICO. And one of the toxics is chlorine

itself. It is a biocide. It kills everything at certain levels.

Mr. GRUMBLES. Chlorine, and I would defer to Dom on this. I can

just say that one of the specific components in the draft permit is

the requirement to test for detectable levels of chlorine, because

chlorine, as you know, is used at various drinking water facilities

as a disinfectant, chlorine or chloramine.

So, if processed water is used to flush out the sediment basins,

there may be situations where there are detectable levels of chlorine or chloramine in the discharge.

Mr. UDALL OF NEW MEXICO. OK. That is it.

Mr. IZZO. As far as the chlorine goes, based on the monitoring

we have done and the information that is available, it is completely

neutralized by the time it gets into the river. Essentially, what we

are using it for is when the basins have been emptied they have

to be flushed to get that last layer of sediment out of there. They

just use the water that is available.

The combination of the water mixing with the air, which causes

a certain amount of the chlorine to vaporize, and the chlorine interacting with the sediment causes it to be neutralized before it gets

into the environment. So, we do not believe that that is a problem.

Mr. UDALL OF NEW MEXICO. Well, the Chairman mentioned in

his statement and I’m talking about Chairman Hansen, not Chairman Radanovich, fishermen and police officers complained about

heavy amounts of chlorine in the discharges. So, you are saying

that doesn’t occur?

Mr. IZZO. If it has occurred in the past, it has been of an intermittent nature and it is basically an accident. The information we

have is that it is not occurring.

Mr. UDALL OF NEW MEXICO. Have any of you received any commitments from Park Police officers that there have been major discharges of chlorine into the river?

Mr. IZZO. We have not.

Mr. GRUMBLES. Congressman, I think one of the points, I have

no doubt that some of the people who live and recreate in the area

have, as I have just read in the papers, some have expressed some

concerns about the quantity of the water in the Potomac River.

I think one of the points that EPA’s perspective is is that this

draft permit, as we go through the comment period, is an opportunity to respond to concerns based on the scientific analysis and

also we view it in its current form as an improvement that will reVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00051 Fmt 6633 Sfmt 6602 80271.TXT HRESOUR1 PsN: HRESOUR1
48

sult in increased protections by increasing from 50 percent to 85

percent the amount of sediments that need to be removed from the

discharge and also begin the process and aggressively pursue the

process of more studies on some of the remaining issues and questions that some in the public are raising.

Mr. UDALL OF NEW MEXICO. Thank you, Mr. Chairman.

Mr. RADANOVICH. Thank you, Mr. Udall.

Before I allow the others to speak, I do want to make reference

to a couple of things. On the issue of the nature of this particular

dumping, to my knowledge other water agencies and other rivers

are allowed to meter back sludge that is taken out from the river

because a lot of this is sediment that was originally pulled from the

river.

The issue is in other agencies, and what sets this one apart, is

that they are required to meter them in more slowly, not to push

them out into the river in higher concentrations than are normally

allowed. This is probably an issue where this type of dumping

doesn’t occur and this high concentration on river volume, as many

as others do.

But I would like to, if I can, before I go on to the others, to kind

of steer this questioning a little bit differently and that is on the

issue of whether or not this is environmental acceptable or not.

I want to refer to a couple of things. One is that in the discussion

that was had about whether the dumping was going to be occurring

during the spawning season of the shortnose sturgeon or precautions were being taken care of that the dumping was occurring

to protect the endangered species according to a 1998 fisheries

panel study that recommended that.

However, their first recommendation was to stop this dumping

altogether, which was ignored. Then their second recommendation

was, if you were going to be doing this dumping, then you ought

not to be doing it during the time of the spawning of the endangered species.

The second thing I will refer to is the June 18 letter from Craig

Manson who is the Assistant Secretary for Fish and Wildlife and

Parks that states in his letter to the Water Protection Division of

the EPA, states, ‘‘The Department of EPA believes that the sediment discharges should ultimately be eliminated. The department

also has concerns respecting the adequacy of the science underlying

the EPA’s draft NPDES permit.’’

Coming from the Department of Interior, which I appreciate,

those who are custodians of national parks should be on the side

of eliminating the discharges altogether.

I know that there was discussion of the ultimate solution of this

thing which has been on the board for many, many years and that

is a treatment facility that would treat the sludge and the byproduct then would be hauled out in dump trucks to a landfill somewhere. This is the ultimate resolution for this environmental

problem.

I want to encourage some discussion. I am going to give time to

the remaining people. But that is why it has been 25 years that

we have known that a facility was required that would treat the

facility and haul it out through D.C. neighborhoods and we are still

49

discussing whether dumping all this sludge in the Potomac is good

or bad and should be allowed to continue.

With that I want to yield to Mr. Rehberg who will have some

questions.

Mr. REHBERG. Thank you, Mr. Chairman. I was afraid you

wouldn’t see me among all my colleagues down here.

This being my first opportunity to address this issue, might I beg

the indulgence of the Committee to submit for the record an opening statement and I will dispense with reading. I would like the opportunity to have that in the official record.

[The prepared statement of Mr. Rehberg follows:]

Statement of The Honorable Dennis R. Rehberg, a Representative in

Congress from the State of Montana

Mr. Chairman, thank you for holding this oversight hearing on an issue that highlights the alarming inconsistency in the enforcement practices of the Endangered

Species Act.

Mr. Chairman, it is time for this Congress to end the East vs. West hypocrisy of

the Endangered Species Act.

It’s well past time we demand consistent application of the ESA—from the eastern

shores and marsh lands, to the vast plains stretching across middle America to the

ocean lined cliffs of the West. The same law that has continuously affected projects

throughout the rural West, halting progress, and derailing hundreds if not thousands of enterprises out of business appears to be simply tossed aside when it’s enforcement does not suit those along the urban corridors of the East.

Despite potential endangered species implications, the expansion project for the

Woodrow Wilson bridge continues, as does the sludge dumping that is the topic of

today’s hearing. Why should one species or project warrant less scrutiny simply because of its zip code?

Mr. Chairman, these inconsistencies highlight the double standard that is repeated over and over again when well-funded East Coast environmental lobbying organizations file lawsuits, crushing economic advancement throughout the rural

West, as in the case of the Klamath Basin in Oregon and the forests of the Pacific

Northwest.

When it comes to ESA enforcement thousands of miles away, these lobbying

groups are ready with a lawsuit in one hand a muckraking media campaign in the

other. However, threaten these so called stewards of the land with trucks carrying

sludge through their upscale neighborhoods or the possibility of adding 15 minutes

to their daily commutes because the bridge is backed up and—wait’the spawning

ground for an endangered species suddenly becomes less worthy of protection.

Clearly this is ‘‘selective enforcement’’ of the Endangered Species Act, right here

in the backyard of the Capitol.

Why? Well with the Corps’ practice of sludge dumping, any other option for discharging this toxic material would include transporting it from the Washington Aqueduct to an alternate location. But to do that, transport vehicles would follow a

route through some of the priciest real estate in the area—Georgetown. Of course

the folks who live in Georgetown haven’t exactly been receptive to this idea. But

that shouldn’t be justification for not enforcing the Endangered Species Act—folks

in Montana aren’t given the choice to be receptive to an ESA concern or not. The

file a lawsuit, shut down a project and ask questions later approach of the East

Coast environmental groups doesn’t allow for that.

The overreaching effects of the ESA affect Montanans, and many Westerners, on

a daily basis. Foresters are precluded from harvesting timber because of possible implications on an endangered or threatened species, ranchers fear for their herds because of wolf populations increased by reintroduction, and small businesses must be

aware of the umbrella of ESA regulations and policies or risk legal action. These

are just a few of the examples available. Yesterday we heard from my good friend

from California as he regaled us with unbelievable stories of inconsistent EPA enforcement. But apparently, these overreaches only apply out West. At least the

examples set by Federal agencies, right here in the Nation’s Capitol, illustrate that

the ESA doesn’t apply here.

Today’s hearing focuses on the Army Corps of Engineers’ traditional practice of

dumping toxic sludge into the Potomac River, in a National Park, and onto the

spawning ground of the shortnose sturgeon—an endangered species. Are the NaVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 80271.TXT HRESOUR1 PsN: HRESOUR1
50

tional Marine Fisheries Service and the Fish and Wildlife Service asleep at the

switch? The Environmental Protection Agency is in the process of re-issuing the

Corps’ permit to dump toxic sludge into the spawning ground of an endangered species. How can this be? This would never fly out west, nor should this Congress allow

the Endangered Species Act to continue to be enforced in an inconsistent and haphazard patchwork manner across the country. Your zip code, no matter how

wealthy, should have no bearing on the enforcement of Federal law.

I hope that by bringing these issues to national attention we will enlighten the

public that some in this zip code clearly believe environmental laws are too good

for some folks. Regardless of how anyone feels about the ESA, the law must be applied in a consistent manner across the country.

Mr. Chairman, I thank you, and Subcommittee Chairman Radanovich for your efforts to uncover and correct these inconsistencies.

Mr. REHBERG. Mr. Grumbles, is it usual for the EPA to allow

permits to be either continued or considered with incomplete data?

I guess I wasn’t aware of that. Maybe you could refresh my memory a little bit about the permitting process under both Clean

Water and the Endangered Species Act and your ability to have the

flexibility to decide in this particular case, we are going to let them

go ahead and keep doing it until we determine whether there is

both a health risk and a fish and wildlife risk.

Mr. GRUMBLES. That is a fair question. I think a couple of things.

One is, when EPA or as is most likely the case, Congressman, a

State issues a Clean Water Act permit, and as I said I have 44 or

45 States, 44 States that are the ones actually issuing the permits,

not EPA.

But in the situation of issuing a permit, it is frequent that some

of the limitations and conditions that are included in the permit

are met to foster additional monitoring and gathering of information on potential issues. I think that the concept of a permit is that

it needs in some sense to be reflecting adaptive management in an

iterative process and that when the permit comes up for renewal

or expires at 5 years, that will be a period of time when you have

additional information to respond to that new information or if,

under certain circumstances this new information comes in and is

made aware to folks before that 5-year expiration, then there may

be a need for a modification tool.

Mr. REHBERG. Is that same flexibility afforded the private sector?

I will use as an example the sugar factory in Billings, Montana.

Would they have that same opportunity?

Mr. GRUMBLES. My understanding is yes, they would. There is no

distinction between governmental and non-governmental entities in

terms of that.

Mr. REHBERG. Then let me ask you my follow-up question, and

that is, in the case of the sugar factory in Billings, Montana, for

a period of 10 minutes 1 year, they allowed, through a mechanical

error, a discharge of sugar into a drain ditch. They were assessed

a penalty of $100,000.

What kind of penalties are you assessing against the municipalities that are dumping highly chlorinated water maybe once every

couple of years?

Mr. GRUMBLES. A couple of things, in terms of the Clean Water

Act, the authorities—and this gets into an enforcement type of

question—in most permits, whether it is a municipal discharger or

an industrial or private sector discharger, there are situations, fairVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 80271.TXT HRESOUR1 PsN: HRESOUR1
51

ly prescribed situations, where they are able to avail themselves of

a bypass or an upset defense if they can point to certain circumstances, act of God or some circumstance where there is a likelihood of substantial damage to persons or property.

They have a defense where a limited discharge can occur without

creating liability, as long as they report the discharge in advance.

Mr. REHBERG. Can you give me an example then of a situation

where this municipality has been fined?

Mr. GRUMBLES. This municipality being—

Mr. REHBERG. The aqueduct, the C&O and the sludge?

Mr. GRUMBLES. Well, that is a good question. This is a unique

situation where it is really not the municipality that would be

fined. It is the Army Corps of Engineers which is out of the Baltimore District. It runs and operates and controls the Washington

Aqueduct.

I know that there have been Safe Drinking Water Act violations

in the past, perhaps not at the facility itself, but within the distribution system where fines have been imposed.

I would be happy, Congressman, to provide you more information

for the record on that.

Mr. REHBERG. OK. One last question for you, and that is Mr.

Keeney mentioned the fact, and I will have you respond to his

statement that the inconsistency that probably exists that we allude to, the west versus the east or urban versus rural, is that you

have already destroyed your habitat in the east and you are trying

to keep us from doing that.

Does the Endangered Species Act or the Clean Water Act allow

the flexibility of making a determination that you are going to protect us from ourselves, but it is OK for you not to go back to what

you were as a rural area in the 1800’s?

That is a serious question. You see, I wasn’t aware that the laws,

both the Endangered Species and the Clean Water Act allowed you

the opportunity to make a determination that because, as Mr.

Keeney mentioned, you were something back in the 1800’s but you

are not now.

In Mr. Osborne’s case they are moving into Nebraska and making a determination that they are potential habitats, so they become critical habitat for the re-establishment of something that

was never there, but it is not OK in the east to say, ‘‘We have proof

in 1899 that there was a sturgeon in your river and we are going

to make you go back to what you were—I didn’t realize you were

a different Zip Code or a different financial situation.’’

I just don’t understand the inconsistency of the application of

those two laws, the Clean Water Act and the Endangered Species

Act.

Mr. GRUMBLES. I guess what I would ask to do is, one, be able

to mention that when it is brought to the attention of Administrator Whitman. She clearly has concerns about any allegations

made about the unequal application of the Clean Water Act.

We are not aware of situations where there is unequal application. We can try to provide more information about violations in

various States geographically, but it is really, in terms of the implementation of the Act and enforcement of the Act.

52

Mr. REHBERG. Well, we would feel better if we saw some financial penalties against the Corps of Engineers if they are in fact violating. We will bring that up later. I am sure the Corps would just

as soon not be fined.

Mr. Murphy, in your testimony you talked a lot about additional

studies. Are you allowed as a National Park Service to accept, and

do you consider scientific studies by outside peer groups? All of

your testimony referred to additional studies within the Federal

Government system.

Mr. MURPHY. Right.

Mr. REHBERG. But there are certainly a lot of scientists that exist

outside of government. Are you able under your authority to consider peer scientific studies that will and can prove that there is

an impact on your park?

Mr. MURPHY. The short answer is yes. We have contracted for an

outside firm, a private firm, to do studies on our behalf. The reference in my testimony was to those that have the jurisdiction for

doing the studies, in this case the EPA and the Corps of Engineers.

Mr. REHBERG. How about if you didn’t contract out, if I were to

establish a relationship with a scientific community that could

prove to you that that does exist? Would you as a National Park

Service accept that as factual?

Mr. MURPHY. Well, there are certain instances where if someone

comes to us and presents scientific data and information and we

verify that that is the case, I mean, absolutely, we would take some

sort of action if that information was verifiable and it showed that

there was harm taking place to park resources. The answer is yes.

Mr. OTTER [presiding]. Pardon me, Mr. Rehberg, I know you are

not colorblind. That red light has been on now for quite a while.

Mr. REHBERG. Oh, I am sorry. It is behind this young lady and

I didn’t see it.

Mr. OTTER. We are going to have another round, Mr. Rehberg,

if you want that.

Mr. REHBERG. I just wanted to ask one last quick question, if I

could, mainly because I have to go. That is public input, Mr. Murphy, are you accepting put input as you do on some of the other

land resource issues in national parks?

Mr. MURPHY. Do you mean on this particular—

Mr. REHBERG. On this particular issue. If I were to make a plea

through the media for public input on whether you ought to continue dumping sludge into the Potomac, chances are 100 percent of

the people are going to say no. Are you accepting that public input?

Mr. MURPHY. We certainly listen to public input and take action

based upon public input. There are instances where we call for

public hearings on particular instances. The answer to that is yes.

Mr. REHBERG. Thank you, Mr. Chairman. I apologize for going

over my allotted time.

Mr. REHBERG. [Presiding] Well, you know we indulge you, you

know, Mr. Rehberg.

Mr. REHBERG. Well, Mr. Otter doesn’t.

Mr. REHBERG. Mr. Otter.

Mr. OTTER. I thank you for coming back, Mr. Chairman, and getting this Committee back in shape, including Mr. Rehberg.

53

STATEMENT OF HON. BUTCH OTTER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF IDAHO

Mr. OTTER. I think we have maybe stumbled onto the problem

that we have. You know, yesterday when we began the hearing relative to the Endangered Species Act as a whole, one of my colleagues mentioned that it would be interesting to look 200 years

down the road and see how successful we were and how many species we had actually lost.

I think part of the problem is that we do have, indeed, at least,

a species in the form of a philosophy present here yet today that

we thought we had gotten rid of 200 years ago. It was called King

George III and government by men instead of by laws.

Part of the problem I see, I think, in responding to questions, Mr.

Grumbles, you said earlier that there was like a request for an 85

percent reduction of the pollutants in the water. Is that right?

Mr. GRUMBLES. Eighty-five percent reduction of the sediment

load.

Mr. OTTER. Is that the normal way you reflect on those? You

have to reduce it 20 percent, 30 percent, 40 percent?

Mr. GRUMBLES. It is based on large part on the traditional approach under the Clean Water Act, particularly where you have an

intermittent discharge as opposed to a continuous one. You look

first for a technology base control—

Mr. OTTER. But my question here goes to the percentage. That

is how we measure success or failure, did we reduce it 85 percent?

Did we reduce it 10 percent? Is that right?

Mr. GRUMBLES. That number is based on the secondary treatment provisions in the Clean Water Act.

Mr. OTTER. In response to a question earlier, Mr. Keeney said

part of the problem was that the east had a history of polluting

and more industrial sites, I guess, and that sort of thing. And we

haven’t out west.

In some of the traditional and historic uses that you were mentioning on the C&O Canal, on the resulting pollutants that are

then—we don’t call them pollutants; we call them sludge—what do

you call them?

Mr. GRUMBLES. Sediments.

Mr. OTTER. But, you know, we shut down 32 lumber mills in my

district in the last 9 years. We have idled 12,000 miners, all because of the Clean Water Act and the activity on the watershed

could have caused a problem in the contiguous or in the contributing streams to the Salmon River and the Snake River and subsequently the habitats.

Some of those were built in the 1920’s. Now, technology has improved them. But they are still shut down and the thing is so are

the jobs and so are the families and unfortunately, so are the communities. That is the problem that we have.

Now, getting back to Mr. Keeney, if you ask for a 50 percent reduction in the pollutants that are present in a stream in the east,

as opposed to a stream in the west, as you well know, you know,

if you take 50 percent of the pollutants out of something that is

highly polluted, it is pretty easy to get a 50 percent reduction.

But of something that is running fairly clean and has not been

violated to the extent and you ask for a 50 percent reduction in

54

that, getting that last 50 percent out of a stream that is already

fairly clean is much more expensive and limits the activities to a

much greater degree. Is that not so?

Mr. GRUMBLES. This came up a bit last week when we were talking about trading and watershed based approaches in a different

Committee.

Mr. OTTER. Right. I am on that Committee.

Mr. GRUMBLES. The point is well taken in the sense of fundamentally, the Clean Water Act, whether it is municipal or industrial discharges, it requires EPA or the States to apply a two-part

approach to permitting. The first part is a technology-based control

and that is where you get into the percentages, the percentage removals.

The second part, and the part that EPA is very much focused on,

we believe the more you talk about watershed-based holistic approaches and looking at the actual health of a watershed, you have

to get to this second part and really focus in on it and that is the

water quality-based approach that says, well, above and beyond or

in addition to whatever technology-based controls, what do the fish

require? What does the water column need? What do the water

fowl require?

That is where you get into some additional provisions. I think

the draft permit for the Washington Aqueduct tries to do that as

well by requiring additional monitoring and studies on the actual

impacts.

We are supportive of additional studies with the National Park

Service on the potential impacts on the fisheries or a smothering

effect, looking at the actual water column, going beyond the percentage removal. Because as you get into a watershed, whether it

is east coast or west coast, you have to do more than just apply the

baseline percentage reduction that is a technology-based control.

So, we are supportive very much of looking beyond just a baseline approach.

Mr. OTTER. Well, I am just a farm boy from Idaho. I live very

close and I run up and down the Potomac all the time when I jog.

I also run up and down the Boise River and the Salmon River

when I am home and the Snake River and the Clearwater.

I will guarantee you, we have nothing, I mean I have never seen

a river catch fire like the Potomac did one time, I am told, in

Idaho. I just am unable to, I guess, get to the question of how come

it seems so unequal.

How many companies have you shut down east of the Mississippi

River on the watershed? How many lumber mills have you lost?

How many miners have you shut down? How many coal mines

have you shut down in Virginia?

I guess my time is up.

Mr. REHBERG. Keep going.

Mr. OTTER. Thank you, Mr. Rehberg. I appreciate that.

I am not going to ask for a response to that because I guess we

are going to get another round.

But, Mr. Chairman, I would ask unanimous consent that the report referred to in earlier testimony that was the result of the

headline in this morning’s Washington Times, and I am not sugVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6602 80271.TXT HRESOUR1 PsN: HRESOUR1
55

gesting that you read the Washington Times, but for that report.

I would like to have that submitted for the record.

Mr. RADANOVICH. Is there any objection? It is so ordered.

[The newspaper article referred to follows:]

Mr. OTTER. Thank you.

56

Mr. GRUMBLES. Mr. Chairman, if you do get a copy of the report,

we would like to see it, too, because it is very unclear as to exactly

what that article is referring to, as well as the allegations that

somebody is making in terms of a former employee.

We are very seriously looking into whether or not there is any

basis of fact in the relevance of the discussions in that article. So,

I appreciate that.

Mr. OTTER. I would also like to ask unanimous consent, then,

should we continue with this investigatory process, that we have

those former employees come and testify before this panel.

Mr. RADANOVICH. I have no problem with that. If there is no objection, it is so ordered.

Mr. GRUMBLES. Just for the point, this was an ex-permit writer

by the name of William Colley. I think his name was mentioned

in recent press articles. For the benefit of the EPA, that is who it

is.

Mr. RADANOVICH. Thank you, Mr. Otter.

I still can’t understand why in all of this discussion about dumping the sediment into the Potomac River, again, this is onto the

spawning grounds of the expected habitat of endangered species

into a Heritage River, through a National Park, why nobody is in

that panel, except for what was brought to light recently from the

Department of Interior, why aren’t people saying that we shouldn’t

be doing this; that we should be doing and working toward what

was recommended many, many years ago and that is the construction of a treatment facility that would prevent the dumping of this

sludge into the Potomac.

I can’t for the life of me find out why agencies such an NMFS

or EPA is justifying this without precluding it by saying this

shouldn’t be happening, the best solution is a treatment facility.

Why hasn’t that happened over the last few years?

There was evidence in an Army Corps of Engineers report that

a treatment facility would result in a byproduct that would have

to be hauled out into neighborhoods with dump trucks and they

were affluent neighborhoods and therefore it was not recommended.

I would like to get the response either from you, Dominic, or you,

Ben, on why has it been 20 years that the ultimate solution for this

thing hasn’t even really been worked toward?

Mr. GRUMBLES. Mr. Chairman, it is not our view that the draft

permit in its current form precludes a solids recovery facility.

Mr. RADANOVICH. Why didn’t you call for it? That is my question.

I mean you didn’t preclude it, but why didn’t you call for it?

Mr. GRUMBLES. To my knowledge, based on the information that

has been gathered over the years and certainly the public comment

period and the views not only of the customers who actually would

be paying for the facility—

Mr. RADANOVICH. God forbid that that would happen inside this

Beltway.

Mr. GRUMBLES. Well, our job at EPA is to issue a permit that

is protective of the environment. That is the most important factor.

Mr. RADANOVICH. So, is it your statement then that dumping the

sludge or the byproduct, if you want to call it that, or the sediment

into the Potomac is a better solution than building a facility?

57

Mr. GRUMBLES. Our position on it is that the best way to percent

is to be cautious, to learn more in terms of the scientific—that the

facts scientifically what is the impact, not just the shortnose sturgeon, but any other potential adverse impacts on fisheries in the

river and that it is an entirely legitimate and cautious approach to

require 85 percent removal of the solids where we would be requiring the permittees to also be developing a plan to implement that.

Our view is that could lead to a solids recovery facility, but that

right now if you get into looking at the environmental benefits of

such a facility, we are not sure yet, we are not there to say we have

to mandate from the top down a requirement that this $60 or $70

million be built.

Mr. RADANOVICH. Mr. Grumbles, you do mention that 51 percent

in sediment reduction, which I think you should be applauded for

that, but the fact of the matter is that you are still filling sedimentation ponds and still requiring that sludge to be dumped out

into the Potomac on to the spawning grounds of an endangered

species, and you hearing known this for 25 years.

Now you are saying maybe we need to relook at the dumping of

the sludge into the Potomac and there is evidence there that for

the first time in 25 years you are going into formal consultations

with one of the agencies that have the oversight over the enforcement of the Endangered Species Act. This doesn’t wash. I mean it

doesn’t wash.

Why has it been 20 to 25 years and no movement on a water

treatment facility that has been known has been needed and was

the top recommendation at least in a 1998 study, if not before, that

that was the best way to handle this problem.

Mr. GRUMBLES. I think two aspects jump out. One, the legitimate

scientific debate over whether it is a spawning ground for the

shortnose sturgeon; and two, the ongoing debate, particularly in

the 1996 Safe Drinking Water Amendments where there was a tremendous amount of Congressional concern and jurisdictional concern among the jurisdictions, the wholesale customers about the

mandated establishment of that facility.

EPA was listening and has been implementing the provisions of

the ’96 Act and one of the clear messages that was from that debate was that it would not be advisable; it could be premature and

unjustifiably costly to mandate the construction of that type of facility at this time.

What we are saying now is that the jury is still out on what is

the best way to proceed is. The jury is not still out on the need to

reduce the overall sediment load. We are going to be in more consultation. We will be getting more public comments on additional

ways to reduce the discharge and continue looking at—

Mr. RADANOVICH. Mr. Grumbles, please excuse me. I have a

Medicare Commerce vote. That is why I am slipping out, running

through the rain, to get to the votes.

Mr. Otter, would you take it over for me. Please forgive me and

I will be back, if you don’t mind.

Mr. OTTER [presiding]. Had you completed the answer to that

question?

Mr. GRUMBLES. I believe so. I think so.

Mr. OTTER. Mr. Udall.

58

Mr. UDALL OF NEW MEXICO. Thank you. I wanted to explore with

the Corps a little bit about whether the Corps complies with every

aspect of the current NPDES permit. The majority memo prepared

for the Subcommittee hearing alleges two violations of the existing

permit. The first is that the Corps is required to record the temperature of the discharges and at times fails to do so.

The second allegation is that the Corps have violated the permit

at times and has failed to notify the EPA as required by the

permit.

What is the situation on both of those allegations, Dominic.

Mr. IZZO. Well, sir, we believe we are in full compliance with the

permits and that any reported instances are fully investigated and

corrective action is taken. If that is not the case, if it is brought

to our attention we will certainly correct it immediately. But based

on all the information that is available, we are in compliance and

we have responded appropriately when any potential violations

have been brought to our attention.

Mr. UDALL OF NEW MEXICO. So, you don’t know of any time

where you have failed to record the temperature or the discharge?

Mr. IZZO. Sir, I do not.

Mr. UDALL OF NEW MEXICO. Has there been any violation of the

permit that you have failed to report to the EPA that you know of?

Mr. IZZO. Not that I can comment on. If you would like us to provide a statement, we can go back and review the records and provide any. This is obviously a day-to-day operation where there may

be violations over a period of several years. You are bound to have

mistakes made. If there are, they will be in the records and we will

be happy to provide that information to you.

Mr. UDALL OF NEW MEXICO. But you don’t have any knowledge

of any specific one at this point?

Mr. IZZO. No, sir, I do not. I do not believe there are any significant violations, in other words, any violations that would not normally occur in a process plant of this types where things occasionally happen.

Mr. UDALL OF NEW MEXICO. Mr. Grumbles, the aqueduct is operating under a 5-year NPDES permit issued in 1989. Why was it

that a new permit was not issued in a 5-year period? That would

be 1995.

Mr. GRUMBLES. Congressman, a couple of reasons, I believe. One

is just like a lot of other facilities throughout the country, there is

a serious backlog of Clean Water Act, NPDES permits. The way

the Act operates is that the permit cannot, by law, be for more

than a 5-year period.

As well as the discharger provides notice 180 days in advance of

that expiration date to the regulatory body, which is usually a

State, not EPA, they are able to continue to on the under their expired permit. That is the situation where it is well over 20 percent

of the dischargers throughout the country are operating under expired permits.

It is a high priority of the agency to try to reduce that backlog.

I would say that the Washington Aqueduct, like so many other facilities across the country, has that. Because of the increasing complexity and resources requirements in terms of re-issuing permits,

there is a backlog.

59

The other point, an important one, that relates specifically to the

Washington Aqueduct is that in the early ’90’s and mid-90’s, after

the permit expired there was a vigorous debate within Congress as

well as within the jurisdictions as to just exactly what the future

of the Washington Aqueduct would be in terms of the ownership,

control, operation.

The Safe Drinking Water Act Amendments of ’96 specifically contemplated that there would be studies and consultation with the

customers, the wholesale customers and others as to what the entity should be, whether it should be transferred from the Corps of

Engineers.

In that type of a setting where there was uncertainty as to what

the makeup and the design and jurisdictional operation of the facility would be, that that contributed to a ‘‘delay’’ in terms of reissuing the permit.

Mr. UDALL OF NEW MEXICO. This is for any of the panelists.

Have any of you had any complaints about negative impacts on the

fish from anyone as far as the fishermen or anybody else on the

discharge into the river?

Mr. MURPHY. We have had some complaints. I don’t know what

the level of those complaints. Our superintendent of the park is

here and our park rangers, of course, patrol that area. So, there

have been some complaints and there was at least one police complaint filed in answer to your earlier question about the chlorine

and the smell of the chlorine that was probably referred to in

Chairman Hansen’s opening remarks.

Mr. UDALL OF NEW MEXICO. Can you tell me a little bit more

about that Park Police complaint?

Mr. MURPHY. I don’t have personally the details. If you would

like, I could have our part superintendent come up and talk to you

about that. But I don’t have direct knowledge. As the Deputy Director, of course, I wouldn’t get that specific of information on a

particular park.

Mr. UDALL OF NEW MEXICO. OK. Have any of you heard of complaints from people who are recreating on the river about the

smell? Have they brought that up? Have any of you been there? Is

the discharge particularly smelly?

Mr. MURPHY. I haven’t been there, but there certainly have been

complaints and those have been brought to our attention, that

there are those complaints from recreators.

Mr. UDALL OF NEW MEXICO. Thank you, Mr. Chairman.

Mr. OTTER. Thank you, Mr. Udall.

There are a couple of things that I would like to try to clear up

here prior to recognizing Mr. Rehberg again.

One, how can an agency like the Army Corps of Engineers be in

violation of a permit if they have not had a permit from 1994 until

March of this year? If there is no permit, how can they be in violation of it?

Mr. GRUMBLES. Congressman, I believe they have had a permit

prior to—did you say 1994 or what?

Mr. OTTER. 1994. The record shows that they operated without

a permit. You said 5 years. The permit ran out between 1989 and

1994 and they operated and continued that process for 8 years.

60

Now is that normal, the EPA allows folks to continue for 8 years?

Can you cite me examples of that?

Mr. GRUMBLES. I was trying to—I didn’t do a very good job at

it, but I was trying to explain to Congressman Udall that the way

the Clean Water Act is written and implemented and through EPA

regulations, whether it is a municipality or an industry, west or

east coast entity, that if they submit 180 days before the permit

expires, if they submit notice to the regulatory body, which is either EPA or the State, then by regulation under the Clean Water

Act they are able to continue to operate under that expired permit.

Mr. OTTER. For 8 years?

Mr. GRUMBLES. Well, until it gets re-issued.

Mr. OTTER. Do most of them take 8 years?

Mr. GRUMBLES. I don’t know what the exact timeframe is, but it

can be a longer time period than we would want to admit in terms

of the amount of resources. Again, it is mostly the State permitting

entity, not EPA. But because of the resources, personnel and technical issues, and Clean Water Act permits are getting more complex, it can take several years.

Whether eight is the arithmetic mean or the average, I don’t

know. But based on all the work that is required and the technical

expertise in re-issuing a permit, there are permits that are expired.

When they are expired, the provisions still control.

They are not operating without any kind of a permit. It is just

that they are operating under the expired permit. It is administratively continued. So, there are still requirements. They can still be

in violation and still be subject to the Clean Water Act. It is just

that they are not operating under a new permit. It is an administratively continued permit that was expired and they provided notice to the regulatory body.

Mr. OTTER. I am still not sure what the process is, but I guess

we will get into that later.

I will recognize Mr. Rehberg now.

Mr. REHBERG. Thank you, Mr. Chairman. I will read the testimony with renewed interest. This answer is probably in there, Mr.

Grumbles, but what is your drop dead date? When will this permit

and all of the review and studies and determinations and input

from various Federal and private entities be done?

Mr. GRUMBLES. The drop dead date is a fluid one in the sense

of what we need to do, now that we are in formal consultation with

National Marine and Fishery Service, I can’t give you, Congressman, a drop dead date on it.

Mr. REHBERG. Our lifetime.

Mr. GRUMBLES. I hesitate to answer that. Based on the time period we have got, the comment period closes June 28th. We will be

reviewing the public comments and I am sure they will be significant and numerous ones that we will be reviewing.

We also have, I think, the clock under the Endangered Species

Act regulations is 135 days from the date in which we enter into

formal consultation. So, 135 days from June 13th, that will be a

significant timeframe.

My sense is that we will be trying the best we can to issue a permit, because we believe a permit is an opportunity to have increased safeguards, sometime before the end of the year. I hesitate

61

because it depends on how much additional information, how many

additional studies that we do with the National Park Service or

others.

Mr. REHBERG. It was mentioned that Nebraska is another State

that has some of these same kinds of discharge problems. I hesitate

to even ask this question, but how many States or how many municipalities can you estimate are in the same situation where they

may be violating the nation’s Clean Water laws and they are either

under a permit that is allowing them to do it or the continuation

of a temporary permit that for God knows how long, may last forever.

Mr. GRUMBLES. We don’t believe there is a violation of the Clean

Water Act in this situation with the Washington Aqueduct based

on all the information we have right now. The process of continuing

to discharge during an expired permit is one, as I was mentioning,

it is a common phenomenon now where the States primarily, but

also EPA as the entity that writes and issues the permit, has a significant backlog. It is over 20 percent of the existing permits that

are out there that are administratively continued permits.

Mr. REHBERG. Do you have any idea of the number? Twenty percent of 10,000?

Mr. GRUMBLES. It is more than 10,000. I will definitely provide

to the Committee for the record the list and the numbers of the expired permits that we have out there. It goes by region, throughout

the ten regions. Just with respect to publicly owned treatment

works, there are about 16,000 facilities that have permits. There

are well over 70,000, over 100,000.

It depends if you count municipal storm water permits as well.

But there can be over 100,000 other permitted entities. About 20

percent of those, and that is just a rough estimate right here, but

I will provide you more information, 20 percent of those have administratively continued permits.

Mr. REHBERG. Let me just make sure I understand this correctly.

You currently have a public comment period open now and that

will close on the 28th and that is for the National Park Service’s

portion as well? The comments go to you. They go to the Park Service. They go to the Corps of Engineers, too?

Mr. GRUMBLES. They go to the EPA, EPA Region 3 is the entity

that is tasked with issuing the permit. So, they will get the comments. We will continue to engage in a formal consultation with

the National Marine Fishery Service.

We will also obviously continue to be working with other Federal

agencies on this.

Mr. REHBERG. Mr. Murphy, have you received any complaints

from any of your employees, staff, about the public health or danger while working in the park?

Mr. GRUMBLES. No. We haven’t received any in terms of the public health danger. I was just mentioning earlier some recreators

have mentioned the smell in the past and an officer has, of course,

mentioned—

Mr. REHBERG. But none of your employees are worried about the

health end of it? Hopefully if we asked them, that is the answer

they would give us.

Mr. MURPHY. I believe so.

62

Mr. REHBERG. No further questions, Mr. Chairman.

Mr. RADANOVICH [presiding]. Thank you very much. Forgive me

for running back and forth. Unfortunately, it is a situation I can’t

avoid. I do want to kind of reopen my questions, unless you had

somebody, Butch.

Mr. OTTER. Yes.

Mr. RADANOVICH. Do you want to go ahead?

Mr. OTTER. Yes.

Mr. RADANOVICH. OK, go ahead. I will come in.

Mr. OTTER. Mr. Murphy, how long have you been with the Parks

Department with Interior?

Mr. MURPHY. I came on at the beginning of the Bush Administration, on October 4th of last year. I have been here that long.

Mr. OTTER. Then that is understandable because all the Park

Service police reports that we reviewed were prior to your arrival

there. The answer to Mr. Rehberg’s question really is during your

time you are not aware of any incident report by the Park Police,

by the National Park Service, that there was highly chlorinated

water flushed from the reservoir that actually overflowed the 6000

block of Broad Street in Bethesda.

The result was strong enough to sting their eyes and throats

while standing 30 yards upstream from the outflow. The majority

of the gas dissipated win about 20 minutes.

So, obviously, this predates your arrival there. So, your answer

to Mr. Rehberg officially is that ‘‘not during your time there.’’

Mr. MURPHY. That’s correct. I had stated earlier that I had

knowledge of that report as told to me by our superintendent, but

I didn’t have first hand knowledge or understanding of that. That

is the only report that I had awareness of, sir.

Mr. OTTER. I see. I guess God has not given me the power of persuasion to convince you folks how frustrating it is for us, whether

it is the Army Corps of Engineers or the EPA or the National Marine Fisheries or whoever that continually seem to come in conflict

with our way of life in the west and the resulting damage or the

resulting dislocation.

Hopefully, though, we can come to some compatible exercise.

Hopefully, this will result in some sort of compatible, at least understanding exercise.

As I said in my earlier round, perhaps it is because when you

require a 10-percent reduction out west of a water body that is already fairly clean, it is awful tough to get another 10 percent out

of that, more costly to get another 10 percent out of that.

Mr. Grumbles, if that isn’t the case, I would like to know, you

know, why it is the case. I mean is dirty water in the east any different than dirty water in the west? If that is the case, perhaps,

you know, as a result of these hearings, we will come to that.

I should probably, Mr. Chairman and members of the Committee

that are still left and to you folks as well, offer a disclaimer because I have had a pretty good run-in personal on my own property

with the Army Corps of Engineers, with the EPA, and with the

Justice Department. I sought to take three old car bodies out of a

swamp behind my house that became a tremendous breeding

ground for mosquitos.

63

Because I hadn’t had all the permits in removing those three old

automobiles out of a swamp that was about a half acre, 6 years

later, $167,000 and I can’t tell you all of the other problems that

I had. Finally, I just paid the fine and said, ‘‘Here is the $50,000

bucks.’’

Mr. Izzo how much have you paid in fines for your violations?

That is a rhetorical question, sir. Unfortunately, that is one of the

things that frustrates us so when our own government wouldn’t

obey its own laws and yet you expect private property owners to,

you expect municipalities to. We have $58 million in highway construction in the State of

Idaho that cannot go forward. I can tell you what that would do

to our economy in the State of Idaho, if we had some of these problems solved. $58 million in Idaho. $14 billion, it was testified to by

the Transportation Committee a couple of weeks ago, nationwide.

I already mentioned the lumber mills, the miners and all the

other dislocations that we have seen.

Mr. Chairman, I would hope that if you all or any of you want

to respond to this rambling of mine, I invite you to do so. But I

would hope that you would see the struggle that we are in and the

feelings that we have for it. If it is that important, and we believe

that the species and those that are endangered and those that we

can help survive, we should.

But we also want you to know what the human cost has been

to us. It hasn’t been fun to watch a city of 400 people die. I mean

the city just went away. The school system is lost. And the resulting dislocation is folks that for generations have called Idaho their

home. All of a sudden, they didn’t have a home. They had to uproot

themselves from generations of being there, and leave.

Like I said earlier, I am just without the power of speech and

persuasion to tell the story, but I would invite you all to come and

look at the story because it is pretty sad in certain areas of Idaho.

I have 650,000 people that live, that were born, that lived, that

recreate, that worked on the watershed.

Every day, every day that watershed, we get hit right dead in

the face with the Endangered Species Act and the Clean Water Act

and we get precious little sympathy from the folks in Seattle that

never come over and try to explain to those people, until their unemployment runs out and they have to leave and go someplace

else, why they should have to be dislocated; why we can’t figure out

a compatible way to do both, as we seem to be able to figure out

east of the Mississippi River.

Thank you, Mr. Chairman.

Mr. RADANOVICH. Thank you, Mr. Otter.

I want to draw the attention of the panel to the Institute for Regulatory Science study that was done on the assessment of water

quality studies in the vicinity of the Washington Aqueduct and

read a statement and talk about the 1994 draft permit that was

issued. It was a draft permit that was actually never issued, thereby allowing the old permit to kind of continue indefinitely.

In this statement on Page 101, at the bottom of the page, it does

state that, ‘‘None of the information provided for this review suggested that the continued discharge of flocculated sediment without

treatment would be permitted on the Potomac, in the Chesapeake

64

Bay watershed, in a National Park, in a National Heritage River,

in the proximity to an endangered species or in EPA Region 3.’’

‘‘Draft NPDES permits issued in 2000 for water treatment facilities in Maine, New Hampshire and Massachusetts require routine

monitoring of flow, TSS, pH, total residual chlorine, aluminum

with chronic and acute toxicity testing as requested by the EPA.’’

As I understand the draft permit, which may have even been

done by the former permit writer that was mentioned in the press

recently, it did have such restrictions in it that would preclude the

dumping of the sediment into the Potomac River. It would in fact

shut the treatment facility down or require that that treatment be

removed in any other way other than by dumping it into the river.

Is that my understanding, Mr. Izzo, if you could comment on

that? That is why they held of on issuing the new permit in 1994

in order to study the situation a little more thoroughly?

Mr. IZZO. I really can’t comment on what happened in 1994, since

I wasn’t here. I can tell you that there are numerous potential solutions if it was determined that the sediment should not be put in

the river. These are outlined in the report that I attached to my

written testimony.

They include not just trucking out, which you have mentioned,

but also the construction of discharge lines to local treatment

plants and so on and so forth. It is a very complex problem, so I

can understand how the folks in 1994 maybe did not address it.

I think our position would be that any significant change that

would be proposed for the water treatment in the Washington Aqueduct for whatever reason would have to be done in collaboration

with the local users who in the long run have to foot the bill. That

becomes a very complicated exercise in local government.

Mr. RADANOVICH. Mr. Grumbles, were you aware of the situation

in 1984? Are you able to speak to that, given the fact that you may

not have been there in 1994?

Mr. GRUMBLES. I can’t add a whole lot of specificity to it. I know

that there was a draft permit that was written. When I saw the

article in the paper this morning about a former employee making

some alleges, I can assure you that is one thing that we are going

to look very closely at.

Mr. RADANOVICH. Well, this is not about a former employee and

an allegation. This is regarding the statement of the fact that in

the draft permit that was drafted by the EPA in 1994, it had such

conditions on it that would preclude the dumping of the sediment

from the river. In fact the Army Corps would not be able to meet

those standards, so this sediment would have to be disposed of

some other way. So, therefore the permit was never finalized.

Mr. GRUMBLES. I think that was, just based on my previous Congressional history and working on the legislation, I think that was

one of the key factors that triggered the tremendous amount of debate in Congress over the future of the Washington Aqueduct because of the concern that a draft permit and the stringent nature,

that it would force some $60 million facility to be constructed and

the objections raised by some of the Congressional interests to that.

I know that was one of the various aspects that was debated. I

don’t know the details as to why the draft permit never got finalized, but I certainly remember that there was, based on the conVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6602 80271.TXT HRESOUR1 PsN: HRESOUR1
65

cerns over the contents of it, it triggered a tremendous amount of

debate in the Senate and in the House as well..

I can’t really add much more than that, Congressman.

Mr. RADANOVICH. Well, let us see, you are engaged in formal consultation now with NMFS. We are looking at a maximum of 135

days before a biological opinion, I think, is established, and then

based on that you will again discuss the formation of another draft

permit. Is that my understanding of how this thing works?

Prior to this, and now you have the Department of Interior that

is weighing and saying, frankly, we don’t want this stuff being

dumped any more. You have a biological opinion that will say what

it say whenever it is released.

Is there a chance that the permit will say that the dumping of

sludge into the Potomac will to this day cease and desist?

Mr. GRUMBLES. It is fair to ask the question, Congressman. I

would feel very constrained in answering it since we are in the predecisional mode. I mean we have an actual permit out there. We

are getting public comment. EPA will be the decisionmaker on exactly what the contents of the permit will be.

I do feel that I can say that Administrator Whitman has tasked

us with looking very closely, very carefully at measures to significantly reduce the loads of the sediments and to continue looking

and, and working with our colleagues looking at the issues of possibly even pursuing a no-discharge at some point.

Mr. RADANOVICH. It is within the realm of possibility, it sounds

like to me.

Mr. GRUMBLES. Well, it is just like the 85 reduction requirement

of the sediments that is in the draft permit right now. That is one

way to force the co-permittees to look seriously at and develop plan

and in the process of doing that over the next several years, it is

possible that a solids recovery facility could ultimately be the plan

of choice or the mechanism of choice.

As the decisionmaker in the permit right now, we are constrained to show one way or the other which direction we are in.

Mr. RADANOVICH. No, that is certainly being asked of you. I just

really wanted to know if it is within the realm of possibility that

you would issue a permit, the result of which would terminate the

dumping of the sludge in the Potomac.

Mr. GRUMBLES. Yes. I think the key thing is, and certainly a

theme of this hearing has been really trying to focus in on what

does the science say? What are the scientific data and evidence to

indicate where we need to be most protective or increase the environmental protections and then not prejudge our consultation with

the National Fisheries Marine Service and then working with the

other entities, National Park Service on additional studies and

things like that.

Mr. RADANOVICH. Thank you. Thank you very much.

Mr. Keeney, thank you for your testimony a little earlier. I am

sorry I have been running back and forth.

I just wanted to bring up something that you had said earlier

which may be in disagreement with regard to the equal enforcement of the Endangered Species Act east and west. You had mentioned the Atlantic salmon. It is my knowledge, you might want to

look into this or you can correct me if I am wrong, but it seems

66

to me that on the issue of enforcement of the Endangered Species

Act with regard to Atlantic and Pacific salmon, that the issue of

habitat really makes a big difference in how that Act is enforced

on both coasts.

I know in California that the habitat of the Pacific salmon is

treated by watershed. You have a lot in my area. There is one habitat which is the Merced River, which is the drainage out of the Yosemite National Park that goes into the San Francisco Bay. It is

treated separate from the Towallame River that also comes out of

Yosemite, a different river that dumps into San Francisco Bay, but

they are treated as separate habitats.

So, the presence of the salmon is determined within the river

itself, where along the Atlantic seaboard the habitat is from Maine

to about as far south as you can get. They are not treated on a

river-by-river basis. The number of species that are counted are

counted from the entire Atlantic coast. It is my knowledge that

that is an example of the discrepancy, I think of the enforcement

of the law in both areas.

Mr. KEENEY. Mr. Chairman, I am just not familiar with specifically how it is applied in that regard.

Mr. RADANOVICH. I wanted to bring that up because at least that

is my knowledge of how it is differently enforced.

Another thing that you might want to look at, too, is the disparity of wildlife biologists on the east and the west coast. I don’t

know what the ratio is. It is quite a disproportion of wildlife biologists that are assigned. If you were to draw a line up and down

the Mississippi River, how many in the west and the east coast, I

think there is a ratio there of about eight to two, more biologists,

I think, on the west coast.

Perhaps if you had had more biologists on the east coast they

would have caught this shortnose sturgeon problem a little bit earlier.

My real question is this. I applaud you for entering into formal

consultation, I think, on this. I guess the issue is the same as it

would be for Mr. Grumbles. What if, in your determination NMFS

comes up and does find out that the dumping of the sediment in

the Potomac River is affecting the endangered shortnose sturgeon.

Is it within the possibility that NMFS will issue an order to

cease and desist immediately?

Mr. KEENEY. Mr. Chairman, I think it depends on the extent of

the information that we discover as to whether or not it may or to

what extent it threatens the continued existence of the species.

As you know, we are continually searching for better science on

this issue. We have to deal with the best available science at the

time with regard to our consultations with EPA. As you know, we

are going to have a biological opinion written within 135 days

which may shed further light on the importance of this habitat for

shortnose sturgeon. [The biological opinion has been retained in the

Committee’s official files.]

Mr. RADANOVICH. And I know that in some of our discussions, it

wasn’t with you, but with some folks on this issue, it was mentioned that even though the habitat around the dumping, which occurs on the aqueduct on the Potomac, that there are other various

67

inlets along the Potomac that are not affected, so therefore there

is habitat for the endangered sturgeon.

Perhaps the sturgeon can live without this particular spawning

ground and the dumping may be allowed to continue. Under my

knowledge of the law, the law reads that if the habitat of a known

endangered species is affected, that the habitat must be protected

at all costs.

In fact, it was in the Supreme Court that it would be at all costs.

So, I just would caution you that my knowledge of this thing is

that if you find out in any way that dumping is—and I think you

will draw the conclusion that this is a spawning ground for the endangered species because that is where fresh water meets salt

water, that this is a potential habitat for that shortnose sturgeon.

You are just going to have to cut these guys off at the shorts.

Mr. KEENEY. Mr. Chairman, first of all, we are not aware that

this is a spawning ground for shortnose sturgeon. Again, our greatest concern is for activities that threaten the continued existence

of the species.

As I also mentioned before, there are examples of cases where

NOAA Fisheries has allowed the taking of an endangered species

where it does not threaten the continued existence of that species.

Mr. RADANOVICH. We have a hearing today at 2 o’clock where

ESA and NMFS does testify in the presence that if there is habitat

of an endangered species that we must err on the side of the species. I am not understanding why that wouldn’t apply in this case.

Mr. KEENEY. Certainly it does apply. As Mr. Grumbles stated, we

are acting under extreme caution here in moving ahead with formal consultations despite a lack of proof of the presence of the species in this area.

We believe that this area is good habitat for shortnose sturgeon,

but we have not found a shortnose sturgeon within 50 miles of this

area.

Mr. RADANOVICH. That is because the sludge is being dumped

into the Potomac. I count up two and two. I don’t mean that disrespectfully. Please forgive me. It is just that this is an important

topic for me.

Again, the way I read the law is that if that area in particular

is found to be a habitat, then a cease and desist must be ordered.

Mr. KEENEY. I don’t believe that is the case.

Mr. RADANOVICH. Mr. Keeney, in your testimony earlier, you

mentioned a word, ‘‘extirpate.’’ Can you help me with that? That

is a new term that I have heard.

Mr. KEENEY. ‘‘Extirpate.’’ I think it has been found not to exist

any longer in the area.

Mr. RADANOVICH. Can you tell me how that relates to the other

part of the law that does say that if it is an suspected habitat of

an endangered species, that the habitat must be protected. It

seems to me contradictory in terms if you have a listed species and

a suspected habitat, but they have not been spotted—

Mr. KEENEY. I think it is protected, the habitat needs to be protected if it is thought that the species could be restored in that

area and you have evidence that the species is in that area.

Mr. RADANOVICH. So, since now we know there have been

sightings of the species, in 1996, I guess, in lower portions of the

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Potomac, it is conceivable that that shortnose sturgeon has the possibility of being restored into that bay area and this dumping

ground is on suspected habitat, it seems to me a likely conclusion

that you have to protect that habitat.

Mr. KEENEY. It depends on the science and it depends on our

consultations with EPA.

Mr. RADANOVICH. OK. Let me ask one more time. I know that

you are doing the biological opinion right now, but if you do conclude that this is an endangered species, that this is a potential

habitat of the shortnose sturgeon and the sturgeon has the possibility of being revived in that area, that the possibility exists that

you would issue a cease and desist order?

Mr. KEENEY. I am not sure that we have the authority to issue

a cease and desist.

Mr. RADANOVICH. How does that work? Do you recommend to

DOJ? Is that how that works?

Mr. KEENEY. We do have enforcement attorneys who could bring

an action under Section 9 to prohibit the Federal action.

Mr. RADANOVICH. To stop it?

Mr. KEENEY. To stop it.

Mr. RADANOVICH. So, the authority is within NMFS?

Mr. KEENEY. Yes. We would work in conjunction with the Justice

Department.

Mr. RADANOVICH. With the Justice Department. OK, good. Thank

you very much, Mr. Keeney. I appreciate your input.

Mr. Otter?

Mr. OTTER. Yes, thank you, Mr. Chairman.

I would ask Mr. Grumbles, you are familiar with the peer review

report from the Institute for Regulatory Science?

Mr. GRUMBLES. I personally have not read it. I know that they

issued a report and I know that EPA staff are—

Mr. OTTER. Do you have any idea how you will use the information in this peer review.

Mr. GRUMBLES. I think we have already. If I am not mistaken,

there is at least one recommendation; there may be a couple in

there that we are trying to capture in the draft permit conditions.

One of those is that the Institute for Regulatory As far as recommended that the Washington Aqueduct use one of two alternatives for managing the discharge and that specifically one was

to clean the settling basins more slowly, using raw water and to

dilute the total suspended solids and alum to acceptable levels.

In the draft permit, we have included a similar requirement for

the discharges, specifically from the Georgetown Reservoir.

Mr. OTTER. Have you also taken into consideration in the Army

Corps of Engineers water quality studies in the vicinity of the

Washington Aqueduct, October 4 of 2001, a couple of conclusions.

‘‘In summary, there appears to be moderate risks to several fish

species,’’ not necessarily endangered, ‘‘of concern from sediment discharges in the project reservoirs when young life stages are

present. The primary risk is from deposition of the suspended sediments on eggs and larvae which could affect survival.’’

Going on, ‘‘Presumably, this restriction was incorporated, and

they are talking about the restriction on time of release, to ensure

that sediment discharges took place when the natural sediment

69

load in the river was very high and dispersion was then quicker

and the visual impacts would be at their least. On a practical basis,

these restrictions have meant that discharges may take place in

the spring when the flow, the turbidity requirements are more

likely.’’

I suppose so that they look more natural.

Finally, ‘‘That no sediment discharges be made between February 15 and June 15 to protect the important fish spawning period.’’

Those things are going to be taken into consideration?

Mr. GRUMBLES. Congressman, I appreciate your mentioning some

of those points. We are working. This public comment period continues through June 28th. We are specifically going through the

RSI recommendation and comments and working on that.

As I mentioned, we have included in the draft permit some of the

recommendations and been responsive to those points, but—

Mr. OTTER. Well, my question goes to that because all of these

answer one of the probably more open-ended questions under the

Endangered Species Act that may affect determination, which I

believe, probably through Mr. Keeney and his organizations into

the consultations that you are in the middle of right now.

Isn’t that a fact? Isn’t that the reason that you are in the middle

of those, because you have a ‘‘may affect’’ determination?

Mr. KEENEY. That is true.

Mr. OTTER. So, it may affect the habitat, may affect the endangered species. Isn’t that right?

Mr. KEENEY. Right, the health of the habitat and in conjunction

with evidence that there are species in the area.

Mr. OTTER. OK. Now, I want to get back to my frustration. Now

let me get back to my frustration. It didn’t happen in my district,

but I am sure you are familiar with the Klamath Falls water problem that they had last year, are you not?

Mr. KEENEY. I am.

Mr. OTTER. How is that dramatically different than what happened at Klamath Falls by the National Marine Fishery and by the

U.S. Fish and Wildlife in the determination that they made to seek

a cease and desist order? How is that so much different than what

we are talking about here?

Mr. KEENEY. Well, in the case of Klamath Falls, the Klamath

River Basin, as you may know on June first NOAA Fisheries issued

a biological opinion that would allow continued flows for farmers

in salmon for 4 years, after which a number of measures would be

required to be implemented to prevent jeopardizing the species.

So, we have been able to work out an agreement there.

Mr. OTTER. How about the period where we took the water away

from 1400 farmers? They already had their crops in the ground and

the crops in the ground and the crops went to waste. How about

the immediate action and the immediate cease and desist order

that was ordered in Klamath Falls because ‘‘may affect determination’’ was in force?

As a result of that, there was considerable economic damage.

Mr. KEENEY. All I can say is that it probably relates more to the

presence of the species in those rivers and the knowledge that

70

those rivers were spawning habitat for that species. There is a distinction.

Mr. OTTER. You just concluded that because there was so many

other places, in answer to Mr. Radanovich’s question relative to

other areas for spawning to take place. There are a ‘‘cajillion’’ other

places that they could have spawned, other than just on the Klamath Falls project. There was one.

I am sorry to hit you right off the shoulder with this is, but I

would ask you to look into the similarities between action that was

taken in Klamath Falls and action that is not being taken here

under the same determination of ‘‘may affect determination.’’

Mr. KEENEY. Congressman Otter, we can get back to you with a

comparison and some thoughtful comments and I will do that.

Mr. OTTER. Thank you.

[The comparison referred to follows:]

Comparison of the 2001 Klamath River and

2002 Potomac River Biological Opinions

In April, 2001, NOAA Fisheries completed a biological opinion (BiOp) on the Bureau of Reclamation’s (BOR) proposed operation of the Klamath Project and the

project’s effects on a threatened population of coho salmon. The BiOp concluded that

the proposed operation of the water storage and delivery system was likely to jeopardize this population of coho salmon, and provided reasonable and prudent alternatives (RPAs) to avoid jeopardizing threatened coho. In November, 2002 NOAA

Fisheries completed a BiOp on the effects of discharges from the Washington Aqueduct, operated by the Army Corps of Engineers (ACOE) and permitted by the Environmental Protection Agency (EPA), on an endangered population of shortnose sturgeon. The BiOp found that the action was not likely to jeopardize this population

of sturgeon.

These two BiOps differ in their conclusions because of significant differences in

the biology of coho salmon (assessed in Klamath BiOp) and shortnose sturgeon (assessed in Washington Aqueduct BiOp) and based on NOAA Fisheries’ analysis of the

effects of the proposed actions on listed species. In summary, the effects of chronic

reduced water flows in the Klamath River on coho salmon that die after spawning

are more significant than periodic discharges of sediments on sturgeon that can persist and spawn within a river for decades. The differences in the conclusions of the

two BiOps in question are, therefore, not the result of unequal implementation of

the ESA, as some have suggested. Rather, the BiOps differ because of significant

differences in the biology of coho salmon and shortnose sturgeon, and differences in

the effects of the Federal actions on the two species.

What are the Key Biological Differences between Coho Salmon and Shortnose

Sturgeon?

Coho salmon in the Klamath River basin, like other Pacific salmon, have a life

history that includes spending a number of years at sea before returning to natal

rivers to spawn. Adults die shortly after spawning. Consequently, an adult coho

salmon that lives out its complete life cycle will spawn only once in its lifetime.

Coho salmon are very dependent on adequate freshwater habitat for juvenile

rearing, adult and juvenile migration, and spawning. Coho can be very habitat limited in the freshwater environment.

Shortnose sturgeon, like coho salmon, are migratory. However, sturgeon do not

die after spawning. Shortnose sturgeon in the Chesapeake Bay and its tributaries

may live 20 years or more. A shortnose sturgeon from the Chesapeake Bay that

lives out its complete life cycle will likely spawn at least several times, and perhaps

more than 15 times. This life history strategy provides a natural buffer against environmental variability and unsuccessful spawning years. It allows shortnose sturgeon populations to withstand an occasional year of low reproductive output without

jeopardizing the population.

What are the Key Differences in Effects of the Federal Actions?

In the Klamath River, the BiOp assessed water management practices which

would result in a significant reduction in habitat quantity and quality for coho salmon. Specific concerns included maintaining adequate habitat space and water temVerDate 11-MAY-2000 14:49 Feb 27, 2003 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6621 80271.TXT HRESOUR1 PsN: HRESOUR1
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peratures. NOAA Fisheries found that the minimum flow requirements in BOR’s

2001 water management plan were inadequate. NOAA Fisheries determined that

the flow schedule proposed in BOR’s biological assessment would result in a reduction in habitat quantity and quality compared with the average operations of the

project during the 1990s. In NOAA Fisheries’ view, this water management strategy

suffered from the same flaw as BOR’s 2001 biological assessment which the National Research Council (NRC) concluded exposed threatened coho salmon to new

levels of risk and was not scientifically justifiable. Given the life history of coho

salmon and the findings of the NRC, NOAA Fisheries found that the water management plan was likely to jeopardize the continued existence of the species. NOAA

Fisheries recommended higher flows to avoid jeopardy. BOR managed the Project

to meet those flows.

In the Potomac River, the BiOp assessed the effects of periodic discharges of sediment into the Potomac River near Little Falls, where shortnose sturgeon are presumed to spawn. One of NOAA Fisheries’ two major concerns was that discharges

from the Aqueduct could be toxic to shortnose sturgeon. A toxicology study of discharges concluded that there were few toxicological effects on test organisms. NOAA

Fisheries concluded that, given the short duration of the pulse of sediments, the potential toxicological impacts were unlikely to jeopardize shortnose sturgeon. NOAA

Fisheries’ second major concern was that discharges during the spring spawning

season could smother sturgeon eggs and larvae. NOAA Fisheries worked closely

with EPA and ALOE during the early, ‘‘informal’’ stage of the consultation to address this concern. EPA and ACOE agreed to prohibit discharges during the spring

spawning season to avoid potential smothering effects. The only exception would be

under certain emergency situations, and would occur no more than once during the

5-year duration of the permit. Given the life history of shortnose sturgeon, and

given that other rivers in the Chesapeake Bay appear to have suitable spawning

habitat for sturgeon, one discharge in the Potomac River in 5 years is not likely to

jeopardize the continued existence of this sturgeon population.

How have BOR and EPA Responded During the Consultations?

Another distinction between the consultations on the Klamath and Potomac Rivers is how each Federal action agency responded to NOAA Fisheries’ recommendations to protect ESA listed species. In each case, NOAA Fisheries found that actions

proposed by the BOR and EPA ‘‘may affect’’ ESA listed species, thereby triggering

a consultation under section 7 of the ESA. NOAA Fisheries and BOR have consulted

multiple times on BOR’s operation of the Klamath Project. In each instance, BOR

has proposed to allow minimum flows below those recommended in NOAA Fisheries’

previous BiOps. Consequently, NOAA Fisheries have issued a series of ‘‘jeopardy’’

BiOps for proposed annual operating plans for the Klamath Project. In contrast,

EPA and ACOE worked with NOAA Fisheries during the ‘‘informal consultation’’

process to minimize negative effects from discharges in the Potomac River on

shortnose sturgeon. Specifically, EPA agreed to alter the permit authorizing discharges from the Washington Aqueduct into the Potomac River to prohibit discharges during the spring spawning season, significantly reducing the threat to

shortnose sturgeon.

Mr. RADANOVICH. I have just a couple more questions and then

we will wrap this thing up. Mr. Izzo, if you could help me out with

something, there hearings been an issue or a question of whether

or not the Army Corps of Engineers was in compliance with State

and district water guidelines at any particular time.

I know that the Corps has testified that they have always been

in compliance. But we have also got receipts and documents, statements from EPA, I think in 1993, and in Maryland in 2001 when

you were indeed in violation. Can you explain that for me?

Mr. IZZO. Well, first, sir, I think we provided you a letter, at Mr.

Parker did, back in February where we addressed all those concerns. We would like to stand by that letter.

The only notice of violation that we have received for the NPDES

permit was in December 1993 at the plant drain. But that was not

related to sediment discharge. That was related to another water

discharge.

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Mr. RADANOVICH. It was chlorine discharge, I think.

Mr. IZZO. Chlorine discharge, yes. I don’t believe it had anything

to do with the sediment process. There was no penalty and I

believe the Washington Aqueduct took effective remedial action for

that. That has been taken care of a long time. I am not aware of

another formal notice of violation. But I believe our letter addressed the concerns which you raised previously based on our previous testimony here.

Mr. RADANOVICH. Are you aware of the 1993 EPA violation that

was issued? Mr. Grumbles, are you aware of that one?

Mr. GRUMBLES. The plant drain violation?

Mr. RADANOVICH. To my knowledge there was notice of a violation, but I don’t know what it was.

Mr. GRUMBLES. I am not personally aware of it. I understand

that there is a situation where rather than EPA is the permit authority, the State of Maryland is the permit authority. Is this related to that? Yes.

Mr. RADANOVICH. No. The 1993 was a residual discharge violation. It was issued by the EPA. In 2001, it was Maryland and it

was the chlorine discharge that was five times the legal limit in

Maryland. To your knowledge, that has been addressed? Have you

been monitoring it so it just doesn’t occur again?

Mr. IZZO. I have not personally been monitoring it, but that has

been reported to me, that it has been taken care of and it is not

a problem.

Mr. RADANOVICH. Butch, do you have any questions?

Mr. OTTER. No, thank you, Mr. Chairman.

Mr. RADANOVICH. I want to thank everybody for being here.

Again, I would just state in closing that I am glad that the process

is proceeding so we can take a look and find out the environmental

effects of this thing. I am amazed that we are not on our way to

a facility, but I think that is going to be the result.

I thank you very much for being here today.

[Whereupon, at 12:57 p.m., the Committee was adjourned.]

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