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75-983 PS 2002

THE DISCHARGE EFFECTS OF

THE WASHINGTON AQUEDUCT

OVERSIGHT HEARING

BEFORE THE

SUBCOMMITTEE ON NATIONAL PARKS, RECREATION,

AND PUBLIC LANDS

OF THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

October 30, 2001

Serial No. 107-71

Printed for the use of the Committee on Resources

(

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

James P. McGovern, Massachusetts

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Brad Carson, Oklahoma

Betty McCollum, Minnesota

Allen D. Freemyer, Chief of Staff

Lisa Pittman, Chief Counsel

Michael S. Twinchek, Chief Clerk

James H. Zoia, Democrat Staff Director

Jeff Petrich, Democrat Chief Counsel

SUBCOMMITTEE ON NATIONAL PARKS, RECREATION,

AND PUBLIC LANDS

GEORGE P. RADANOVICH, California, Chairman

DONNA M. CHRISTENSEN, Virgin Islands Ranking Democrat Member

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Joel Hefley, Colorado

Wayne T. Gilchrest, Maryland

Walter B. Jones, Jr., North Carolina,

Vice Chairman

Mac Thornberry, Texas

Chris Cannon, Utah

Bob Schaffer, Colorado

Jim Gibbons, Nevada

Mark E. Souder, Indiana

Michael K. Simpson, Idaho

Thomas G. Tancredo, Colorado

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Frank Pallone, Jr., New Jersey

Tom Udall, New Mexico

Mark Udall, Colorado

Rush D. Holt, New Jersey

James P. McGovern, Massachusetts

Anibal Acevedo-Vila, Puerto Rico

Hilda L. Solis, California

Betty McCollum, Minnesota

(III)

CONTENTS

Page

Hearing held on October 30, 2001 .......................................................................... 1

Statement of Members:

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

Virgin Islands ............................................................................................... 5

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

of California ................................................................................................... 1

Prepared statement of ............................................................................... 3

Statement of Witnesses:

Fiala, Colonel Charles J., Jr., Commander and District Engineer,

Baltimore District, U.S. Army Corps of Engineers, Baltimore,

Maryland ....................................................................................................... 17

Prepared statement of ............................................................................... 19

Gleason, Patricia, Chief of the Maryland and District of Columbia

Watershed Branch, Water Protection Division, U.S. Environmental

Protection Agency, Region 3, Washington, D.C. ........................................ 11

Prepared statement of ............................................................................... 13

Gordon, Rob, Director, National Wilderness Institute, Alexandria,

Virginia .......................................................................................................... 21

Prepared statement of ............................................................................... 23

Hogarth, Dr. William T., Assistant Administrator for Fisheries, National

Marine Fisheries Service, National Oceanic and Atmospheric

Administration, U.S. Department of Commerce, Washington, D.C. ......... 8

Prepared statement of ............................................................................... 9

Leisch, Gordon, Field Biologist, Formerly of the Department of the

Interior, Office of Environmental Policy, Arlington, Virginia ................... 24

Prepared statement of ............................................................................... 26

Parsons, John, Associate Regional Director for Lands, Resources, and

Planning, National Capital Region, National Park Service, U.S.

Department of the Interior, Washington, D.C. ........................................... 6

Prepared statement of ............................................................................... 7

Additional Materials:

Department of the Army, Letter submitted for the record ........................... 50

Environmental Protection Agency, Letter submitted for the record ............ 60

(1)

OVERSIGHT HEARING ON THE DISCHARGE

EFFECTS OF THE WASHINGTON AQUEDUCT

ON THE C&O NATIONAL HISTORIC PARK

Tuesday, October 30, 2001

U.S. House of Representatives

Subcommittee on National Parks, Recreation, and Public Lands

Committee on Resources

Washington, DC

The Subcommittee met, pursuant to notice, at 10:14 a.m., in

Room 2322, Rayburn House Office Building, Hon. George

Radanovich [Chairman of the Subcommittee] presiding.

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

Mr. RADANOVICH. Good morning and welcome to the

Subcommittee on National Parks, Recreation and Public Lands

oversight hearing on the effects of Washington Aqueduct discharge

on the C&O Canal National Historic Park.

Thank you for making the right room. I know the hearing rooms

have changed about four different times, given the anthrax scare,

and I know you all have invented different ways to get into the

Rayburn House Office Building because most of the entrances are

not open and the tunnels are closed. So I want to thank you all

very much for being here.

The Subcommittee on National Parks, Recreation and Public

Lands is meeting today on the effects of Washington Aqueduct discharge on the C&O Canal National Historic Park. I would like to

say from the start that the purpose of this oversight hearing is not

an attempt to alter the operation of the Washington Aqueduct to

supply drinking water to the residents of the District of Columbia,

Arlington County, or the City of Falls Church, Virginia, along with

a number of installations throughout the Metro area. This is especially significant in light of the events surrounding September 11.

Rather, the purpose of this important hearing is to discuss equal

application of the law, specifically, the application of the National

Park Service Organic Act, the Endangered Species Act, and the

Clean Water Act. The Subcommittee would like to understand how

the Washington Aqueduct is permitted to annually discharge over

200,000 tons of chemically treated sediment or, in simpler terms,

smelly polluting sludge, into the C&O Canal National Historic

2

Park and the Potomac River, which is a Heritage River proclaimed

in 1998 by former President Clinton.

I want to add that the discharge of this polluting sediment is not

a recent event. The Washington Aqueduct operation has been continuously dumping chemicals and sediments into the C&O Canal

and the Potomac River for decades with the knowledge and the

blessing of the Park Service, the EPA, and other agencies.

In this hearing the Subcommittee will seek to examine the following. Why has the National Park Service allowed the U.S. Army

Corps of Engineers to continuously discharge sludge and other

chemically treated water into waters within the C&O Canal

National Historic Park? I ask this question because the National

Park Service Organic Act and the Management Policies Act of 2001

clearly mandate that above all else, the Park Service is to protect

and preserve unimpaired the resources and values of the park for

the enjoyment of the people. Allowing 200,000 tons of sludge to be

dumped into the C&O and the abutting Potomac River is hardly

protecting park resources, especially when one of them, the

shortnose sturgeon, is on the endangered species list and appears

to be a spawning ground for that very same animal.

What is the relationship between the Park Service and the

agency that operates the Washington Aqueduct, the U.S. Army

Corps of Engineers, and the Environmental Protection Agency, the

agency that continues to approve and permit the sludge to be discharged from the water treatment plant into local waterways? I

ask this question because it is my understanding that the 1989

U.S. Army Corps permit issued for the continued operation of the

aqueduct conditioned the construction of additional water basins at

the Dalecarlia plant on developing a sludge treatment facility.

Now, 11 years later, the treatment facility has not been constructed

nor even planned. However, other water treatment facilities across

the country, having far fewer financial resources, have been able

to move forward with such modernizations. Why hasn’t this one

and why does the EPA continue to permit the dumping when it

may be affecting an endangered species?

Question number three. What steps has the National Park Service taken to eliminate the detrimental effects from the plant’s discharge that has and continues to enter the park’s waterways, creating a foul odor, unsightly color to the water, and is lethal to

aquatic life? I ask this question knowing that a National Capitol

Region Park Police officer has filed numerous reports on the discharges, only to see them ignored. In fact, the Committee staff just

visited the C&O Canal National Park last Friday and experienced

a strong odor of chlorine. Clearly the chemical discharges continue

to impact the resources. Why is the Park Service doing nothing

about this?

Question four. What steps under the Endangered Species Act,

specifically consultations mandated by Section 7, has the National

Marine Fisheries Service taken to protect the endangered

shortnose sturgeon and its habitat in the Potomac River from the

continuous discharge of sludge from the water treatment plant?

And lastly, why does the Washington Aqueduct appear to receive

unusual favorable treatment and support from a number of Federal

agencies that would otherwise be fighting to be in front of the line

3

to shut down a similar water treatment plant anywhere else in

America where sludge has been discharged not only into a heritage

river but also into a national park visited by over 2 million people

annually?

I would like to say that as a member who represents Yosemite

National Park, I have seen first-hand how quickly your agencies

move to shut down a facility when it discharges polluting waters

into a national park, as did the EPA when the Wawona waste

water treatment plant discharged into Yosemite National Park. I

find it very troubling to understand why your agencies have stood

by for so long and allowed discharge from the aqueduct into the

C&O Canal National Historic Park while in other instances have

sought immediate shutdowns.

And finally, I cannot help but be reminded of the incomprehensible situation in Klamath Falls, Oregon. As all of you know, earlier this year the Department of the Interior completely cut off

water from hundreds of farmers and thus their livelihood—many of

them, if not all, are being forced into bankruptcies—so that the

habitat of an endangered sucker fish could be preserved—the habitat. There was no notice that the fish was present; it was just the

habitat, very different from the situation here where we know

there is an endangered species and the dumping still occurs. Yet

another example of where the Federal Government did not hesitate

to take action to protect the habitat of an endangered fish.

I think we ought to recognize that the new administration has

inherited the indifference of previous administrations on this matter and it is my hope that a proactive decision will be made to remedy this problem as soon as possible, rather than continue the

head-in-the-sand approach.

I hope to have these and other questions answered today and I

look forward to the testimony of the witnesses and I appreciate the

fact that you are here.

[The prepared statement of Mr. Radanovich follows:]

Statement of The Honorable George Radanovich, a Representative in

Congress from the State of California

The Subcommittee on National Parks, Recreation, and Public Lands will come to

order. Good afternoon everyone. Today, the Subcommittee will examine the effects

of the discharge from the Washington Aqueduct on the Chesapeake &Ohio Canal

National Historic Park and into the Potomac River.

I would like to say from the start, the purpose of this oversight hearing is not

an attempt to alter the operation of the Washington Aqueduct to supply drinking

water to the residents of the District of Columbia, Arlington County, the City of

Falls Church, Virginia, along with a number of installations throughout the Metro

area. This is especially significant in light of the events surrounding September

11th.

Rather, the purpose of this important hearing is to discuss equal application of

the law, specifically the application of the National Park Service Organic Act, the

Endangered Species Act, and the Clean Water Act. The Subcommittee would like

to understand how the Washington Aqueduct is permitted to annually discharge

over 200,000 tons of chemically treated sediment, or in simpler terms, smelly polluting sludge, into the C&O Canal National Historic Park and the Potomac River,

which was proclaimed a Heritage River in 1998 by former President Clinton. I want

to add that the discharge of this polluting sediment is not a recent event. The Washington Aqueduct operation has been continuously dumping chemicals and sediments

into the C&O Canal and the Potomac River for decades with the knowledge and

blessing of the Park Service, the EPA, and other agencies.

In this hearing the Subcommittee seeks to examine the following:

4

1) Why has the National Park Service allowed the U.S. Army Corps of Engineers

to continually discharge sludge and other chemically treated water into waters

within the C&O Canal National Historic Park? I ask this question because the

National Park Service Organic Act and the Management Policies of 2001 clearly mandate that, above all else, the Park Service is to protect and preserve

unimpaired the resources and values of the park for the enjoyment of the people. Allowing 200,000 tons of sludge to be dumped into the C&O and abutting

Potomac River hardly is protecting park resources, especially when one of

them, the shortnose sturgeon, is on the endangered species list.

2) What is the relationship between the Park Service and the agency that operates the Washington Aqueduct, the U.S. Army Corps of Engineers, and the Environmental Protection Agency, the agency that continues to approve and permit the sludge to be discharged from the water treatment plant into local waterways? I ask this question because it is my understanding that the 1989 U.S.

Army Corps permit issued for the continued operation of the Aqueduct conditioned the construction of additional water basins at the Dalecarlia plant on

developing a sludge treatment facility. Now, eleven years later, the treatment

facility has not been constructed nor even planned. However, other water treatment facilities across the country, having far fewer financial resources, have

been able to move forward with such modernizations. Why hasn’t this one and

why does the EPA continue to permit the dumping when it may be effecting

an endangered species?

3) What steps has the National Park Service taken to eliminate the detrimental

effects from the plant’s discharge that has, and continues to enter the park’s

waterways creating a foul odor, unsightly color to the water, and is lethal to

aquatic life? I ask this question knowing that a National Capital Region Park

Police officer has filed numerous reports on the discharges only to see them ignored. In fact, Committee staff just visited the C&O Canal National Park last

Friday and experienced a strong odor of chlorine. Clearly, the chemical discharges continue to impact park resources. Why is the Park Service doing nothing about this?

4) What steps under the Endangered Species Act, specifically consultations mandated by Section 7, has the National Marine Fisheries Service taken to protect

the endangered shortnose sturgeon and its habitat in the Potomac River from

the continuous discharge of sludge from the water treatment plant?

5) And lastly, why does the Washington Aqueduct appear to receive unusual favorable treatment and support from a number of Federal agencies that would

otherwise be fighting to be in front of the line to shut down a similar water

treatment plants anywhere else in America where sludge was being discharged

into not only a heritage river, but also into a national park visited by over 2

million people annually?

I would like to say as the Member who represents Yosemite National Park, I have

seen first hand how quickly your agencies can move to shut down a facility when

it discharges polluting waters into a national park as did the EPA when the

Wawona waste water treatment plant discharged into Yosemite National Park. I

find it very troubling to understand why your agencies have stood by for so long

and allowed discharge from the Aqueduct into the C&O Canal National Historic

Park while in other instances have sought immediate shut-downs.

Finally, I cannot help but be reminded of the incomprehensible situation in Klamath Falls, Oregon. As all of you know, earlier this year the Department of Interior

completely cut off all water from hundreds of farmers—and thus their livelihood—

so that the habitat of the endangered sucker fish could be preserved. Yet another

example where the Federal Government did not hesitate to take action to protect

the habitat of an endangered fish.

I think we ought to recognize that the new Administration has inherited the indifference of previous Administrations on this matter. It is my hope that a proactive

decision will be made to remedy this problem as soon as possible, rather than to

continue the head-in-the-sand approach.

I hope to have these and other questions answered today, and I look forward to

the testimony of all of our witnesses. I now turn to the Ranking Member for her

opening statement.

Mr. RADANOVICH. And I now turn to my Ranking Member, Ms.

Christensen, for her opening statement.

5

STATEMENT OF HON. DONNA M. CHRISTIAN-CHRISTENSEN, A

DELEGATE IN CONGRESS FROM THE VIRGIN ISLANDS

Mrs. CHRISTENSEN. Good morning. Mr. Chairman, thank you for

continuing the business of our Committee. It is good to know that

we are still working, especially since I do have a hearing coming

up later on this week that is of great interest to my constituents

and some of our other colleagues, so I want to commend you and

the staff for keeping the Committee working.

As we understand it, the purpose of this oversight hearing is to

examine the effects of the discharge of sediment and pollutants

from the Washington Aqueduct on the C&O Canal National Historic Park and the habitat and population of the endangered

shortnose sturgeon. We certainly share concern for both the park

and the sturgeon and hope that today’s hearing will provide the

Committee information that will be useful in addressing any problems that may exist. But while we share some of the concerns you

expressed, we do have some questions regarding the issues raised

by this hearing.

It is our understanding that the aqueduct is operated by the

Army Corps of Engineers, an agency over which this Subcommittee

has no jurisdiction. In fact, of the agencies invited to testify today,

only the Park Service falls within the purview of this Subcommittee and despite the impact on the park of the operations of

the canal, it is unclear whether the National Park Service has any

authority over the operation of the aqueduct. In addition, whatever

steps may need to be taken to protect this endangered species are

also outside of the Subcommittee’s jurisdiction.

There may well be changes that need to be made in the manner

in which this aqueduct is operated. Unfortunately, were legislation

introduced to make those changes it also seems unlikely that it

would be referred to this Subcommittee.

However, we have an outstanding array of witnesses. I would

like to welcome them this morning and hope that the information

they provide will prove valuable and I look forward to hearing their

testimony.

Mr. RADANOVICH. Thank you very much.

Any other opening statements from any other members?

With that, we will proceed with the hearing. As you know, there

is one panel today and many folks on that panel. On panel one I

would like to again welcome Mr. John Parsons, who is the Associate Regional Director of Lands, Resources and Planning for the

National Capitol Region of the Park Service, U.S. Department of

the Interior.

Also with us—and welcome, Mr. Parsons—Mr. William Hogarth,

who is the Assistant Administrator for Fisheries, National Marine

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

Department of Commerce. Welcome.

Also, Ms. Patricia Gleason, Chief of the Maryland and District of

Columbia Watershed Branch of the United States Environmental

Protection Agency. I would like to welcome you and thank you for

being here.

Colonel Charles Fiala, who is the Commander and District Engineer of the Baltimore District for the Army Corps of Engineers.

Welcome again, Col. Fiala.

6

Mr. Rob Gordon is the Director of the National Wilderness

Institute in Alexandria, Virginia and Mr. Gordon Leisch is a Field

Biologist, formerly of the Department of the Interior, Office of

Environmental Policy. Welcome to you, as well.

What I would like to do is allow everybody to make their opening

statement. Once we get through we are just going to open it all up

for questions.

So Mr. Parsons, if you would like to begin? And I suppose we will

do the clocks, although I want to make sure you get all your information out. If we have to take up information and follow-up questions, we will do it that way. So if you would be mindful of the

clocks, that would be great. You have 5 minutes and begin if you

would like.

STATEMENT OF JOHN PARSONS, ASSOCIATE REGIONAL

DIRECTOR, LANDS, RESOURCES, AND PLANNING, NATIONAL

CAPITAL REGION, NATIONAL PARK SERVICE, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.

Mr. PARSONS. Thank you, Mr. Chairman. I believe you have copies of my testimony and in the interest of time I will just summarize that.

I thought a bit of history about the C&O Canal might be in order

this morning. The C&O Canal construction began in 1828. This

section of the river—that is, the first 23 miles—was opened to navigation in 1831. It then continued on to Cumberland and did not get

there until 1850, but the section we are talking about was operational long before the Washington Aqueduct came into existence

in 1864.

We have been able to uncover no records that indicate whether

rights-of-way or permits were issued by the Canal Company in the

period of 1860. We will continue that search but it is a very laborious process, frankly.

I should point out that the Canal Company did not own all the

land in question here. They bought a right-of-way for the canal. Between the canal and the river was owned privately at that time.

It did not come into public ownership until the 1940’s and ’50’s and

was acquired by the National Capital Planning Commission pursuant to Capper-Crampton Act of 1929 to protect the shore lines of

the Potomac.

As we understand it, there are seven outfalls that exist in Montgomery County and the District of Columbia. Some discharge raw

river water before it is even treated at Dalecarlia and the others

are discharged downstream from that point.

The canal park was established in 1971 and a proviso in that

was to allow all existing rights-of-way and permits to remain in

place. That is, there was no requirement by the National Park

Service to issue new permits or new rights-of-way for pipes and discharges that occurred under the canal. I should point out that none

of these pipelines go into the canal; rather, they go beneath it in

culverts or pipes and discharge into the Potomac.

As I am sure you know, the National Park Service has no requirement or jurisdiction over the waters of the Potomac River.

Others here on the panel with me have that responsibility and are

working on permits in that regard.

7

That, in summary, concludes my testimony and I would be happy

to answer any questions as we move along.

[The prepared statement of Mr. Parsons follows:]

Statement of John Parsons, Associate Regional Director for Lands,

Resources, and Planning, National Capital Region, National Park Service,

U.S. Department of the Interior

Mr. Chairman, thank you for the opportunity to appear before your committee to

discuss the impacts of discharges from the Washington Aqueduct on the Chesapeake

and Ohio (C&O) Canal National Historical Park and on the habitat and population

of the endangered shortnose sturgeon. Our comments will address the role of the

C&O Canal National Historical Park in this matter.

The U.S. Army Corps of Engineers (Corps) owns and operates the Washington Aqueduct, which provides drinking water for more than one million people in the metropolitan Washington area. Its history dates back to 1798 when, with the capital

city under construction, George Washington suggested that ‘‘the water of the Potomac may, and will be brought from Great Falls into the Federal City.’’ In 1852, Congress commissioned a study of the water supply and, by 1864, the 12-mile aqueduct

began carrying water to the Georgetown Reservoir. The primary water intakes for

the aqueduct are located behind a low dam in the Potomac River at Great Falls.

The river water runs in an underground pipe for most of its path to the Dalecarlia

and Georgetown Reservoirs, which are used by the Corps to filter and treat water

for public consumption.

The operation of the Washington Aqueduct has a long history that predates the

establishment of the C&O Canal National Historical Park. Below, we discuss some

of the facts about some of the outfalls known to the National Park Service at this

time. Three outfalls are in Montgomery County, Maryland. These are permitted by

the State of Maryland and provide backflow release that may be used by the Corps

during facility maintenance. These outfalls are infrequently used and release raw,

untreated river water at points that are within the C&O Canal National Historical

Park.

A fourth outfall in Maryland is located near a pump station on Little Falls

Branch, a few hundred feet upstream of the Clara Barton Parkway and the C&O

Canal National Historical Park. The discharge flows into a natural stream that

passes beneath the canal in a culvert. The discharge is permitted by the State of

Maryland. Raw river water is discharged at this location during maintenance. On

occasion, treated water is discharged here as well. The Corps has facilities to

dechlorinate treated water prior to discharge into Little Falls Branch.

In September 2001, as part of a cleanup effort from an August storm, a National

Park Service contractor tested the soil from the Little Falls Branch box culvert to

determine the potential presence of hazardous or toxic materials in the sediment of

the culvert under the Canal. The test was undertaken with applicable US EPA SW–

846 methods for aluminum, Polychlorinated Biphenyls (PCBs), and Toxic Characteristic Leaching Procedure for herbicides, certain metals, pesticides, volatile

organics, and base neutrals/acid extractables. The testing did not detect any of the

parameters tested for, at or near the respective methods’ Limits of Quantitation.

Aluminum and barium were identified, but at concentrations significantly lower

than the Federal regulatory thresholds. Based on this test, the contractor firm indicated that the material from the box culvert does not appear to exhibit hazardous

characteristics.

Stream sedimentation resulting from discharge to Little Falls Branch does not appear to be a problem within the park. The topography of the area consists of a deep

gorge with many rock ledges, and heavy runoff from natural as well as discharge

events have scoured the stream bottom of sedimentation. Thus, accumulations of

discharged sediments, if any, disburse easily into the stream and do not appear to

significantly affect park resources.

Three outfall discharges are piped across the park in the District of Columbia.

These outfalls discharge water, sediment and aluminum sulfate (alum) from the settling basins at the Georgetown and Dalecarlia Reservoirs. One pipe discharges directly into the Potomac River, and the other two discharge approximately 75–100

feet into a trench located on park land. This trench drains into the Potomac. The

U.S. Environmental Protection Agency (EPA) is the permitting agency for discharges that occur in the District of Columbia, and we understand that it is currently is in the process of reissuing permits for these three outfalls.

The U.S. Park Police is investigating whether any discharge from the Corps facility has either substantially impaired park resources or violated Federal or District

8

of Columbia law. This ongoing investigation was undertaken based on citizen complaints about odor and floating material.

The C&O Canal National Historical Park presently does not issue any permits to

the Corps for discharging on or under Federal property within the park boundary.

Public Law 91- 664’the 1971 law that established the C&O Canal as a national historical park provided for utility rights-of-way. Section 5(a) of that law states: ‘‘The

enactment of this Act shall not affect adversely any valid rights heretofore existing,

or any valid permits heretofore issued, within or relating to areas authorized for inclusion in the park.’’ The Washington Aqueduct discharge lines were in place when

the park was established. As we understand it, the Corps has employed such discharge practices since at least 1927. These discharges may predate establishment

of the park and even the 1938 transfer of the land to the Federal Government by

the Baltimore and Ohio Railroad.

The National Park Service does not have jurisdiction over the waters of the Potomac River, although it does have jurisdiction over the river bed in the District of

Columbia. Responsibility for managing Potomac River water quality lies with the

EPA, the City of Washington, D.C., and the Maryland Department of the Environment. However, water quality is a major concern of the National Park Service. The

National Park Service cooperates with the responsible agencies to enhance protection of the river’s water quality and to protect its aquatic resources.

Mr. Chairman, that concludes my prepared remarks. I would be pleased to answer

any questions you or other committee members might have.

Mr. RADANOVICH. Thank you.

Dr. Hogarth.

STATEMENT OF DR. WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES

SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE,

WASHINGTON, D.C.

Dr. HOGARTH. Good morning, Mr. Chairman and members of the

Subcommittee. Thank you for the opportunity to testify today on

the status of the shortnose sturgeon in the Potomac River and the

potential effects of the discharge from the Washington Aqueduct on

its population and habitat.

The shortnose sturgeon is anadromous, which means that it lives

in the rivers and near-shore marine waters and migrates to fresh

waters to spawn. The shortnose sturgeon was listed as endangered

under the Endangered Species Preservation Act on March 11, 1967

and subsequently listed under the Endangered Species Act of 1973.

National Marine Fisheries Service (NMFS) has the sole responsibility for protecting the shortnose sturgeon under the ESA. The

Chesapeake Bay population segment includes any shortnose sturgeon that inhabits rivers that flow into the bay, including the Potomac River. There is no population estimate available for this population segment.

Prior to 1996 there was limited data on the presence of shortnose

sturgeon in the Potomac. Between 1996 and 2000, four shortnose

sturgeon were captured in the upper and middle tidal Potomac

River during a U.S. Fish and Wildlife Service reward program for

Atlantic sturgeon. These sturgeon were captured in pound nets in

the Potomac River between 55 and 123 miles downstream of the

Washington Aqueduct discharge site. As of April 2001, an additional 42 shortnose sturgeon were captured via the reward program

in other areas of the Chesapeake Bay but none in the Potomac

River.

9

While the evidence does not conclusively demonstrate that

shortnose sturgeon are present in any area that could be adversely

affected by the discharge, there is sufficient evidence to show that

it is at least a possibility. Since the standard for determining

whether ESA consultation is necessary is whether an agency’s action may affect a listed species, NMFS believes it is in the best interest of the species to consider the evidence showing that

shortnose sturgeon are present in the Potomac River basin and

may be present in the action area.

In addition, while we also have not documented the evidence of

shortnose sturgeon spawning in the Potomac River, the habitat in

the upper tidal Potomac River at Little Falls is consistent with the

preferred shortnose sturgeon habitat in other river systems.

While concerns about the effect of Washington Aqueduct’s discharge on water quality, fish, and other aquatic life existed prior

to 1996, the impacts to shortnose sturgeon specifically were not

considered. The capture of shortnose sturgeon in 1996 during the

Fish and Wildlife reward program represented new scientific evidence that had to be considered in ESA Section 7 consultations.

Therefore, in 1998 NMFS worked with the U.S. Environmental

Protection Agency and other Federal and state agencies to develop

measures that would minimize the impacts of the sediment discharges to spawning, anadromous and resident fish in the short

term. Specific recommendations were made for the operation of the

Washington Aqueduct to minimize the adverse effects of sediment

discharges on the spawning activities of anadromous fish and their

habitat. Currently EPA and NMFS are in informal consultations

regarding the effects of the Washington Aqueduct.

The Army Corps of Engineers, operator of the Washington Aqueduct, funded a 3-year water quality study to assess the discharge

and its effects. We understand a final report of this study has been

issued. We have not yet received the final document. EPA will use

the discharge study results and other relevant data to develop a biological assessment of the potential effects of the Washington Aqueduct on shortnose sturgeon. Once we receive this evaluation we

will determine whether the proposed Federal action is likely to adversely affect shortnose sturgeon and other listed species. If so, formal consultation will be necessary and NMFS will have to prepare

a biological opinion.

To conclude, I look forward to working closely with Congress and

the agencies for the protection of this species. Thank you for the

opportunity to provide this testimony. And Mr. Chairman, due to

a commitment at CEQ, I have to leave around 11:30, if that is no

problem.

[The prepared statement of Dr. Hogarth follows:]

Statement of William T. Hogarth, Ph.D., Assistant Administrator for

Fisheries, National Marine Fisheries Service, National Oceanic and

Atmospheric Administration, U.S. Department of Commerce

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

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

River, and the effects of the discharge of sediment and pollutants from the Washington Aqueduct on its population and habitat.

10

Background

The shortnose sturgeon is anadromous, which means that it lives in slow moving

river waters or nearshore marine waters, but migrates periodically to fresher water

to spawn. The shortnose sturgeon was listed as endangered under the Endangered

Species Preservation Act on March 11, 1967, and subsequently listed under the Endangered Species Act (ESA) of 1973. NMFS has sole jurisdiction for protecting

shortnose sturgeon under the ESA. The Chesapeake Bay population segment includes any shortnose sturgeon that inhabits rivers that flow into the Bay, including

the Potomac River. There is no population estimate available for this population

segment.

Occurrence in Potomac River

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

Potomac was from 1899, and the best available information suggested that the species was extirpated from the Potomac River. Between 1996 and 2000, four shortnose

sturgeon were captured in the lower and middle tidal Potomac River during a U.S.

Fish and Wildlife Service (USFWS) reward program for Atlantic sturgeon. These

shortnose sturgeon were captured in pound nets in the Potomac River, between 55

and 123 miles downstream of the Washington Aqueduct discharge site near Little

Falls. As of April 2001, an additional 42 shortnose sturgeon were captured via the

reward program in other areas of the Chesapeake Bay, but not near the Potomac

River.

In addition to the reward program for Atlantic sturgeon, the USFWS conducted

two sampling studies between 1998 and 2000 in the Maryland waters of the Chesapeake Bay watershed to determine the occurrence of shortnose and Atlantic sturgeon in areas of proposed dredge-fill operations. One of these studies was a Potomac

River sampling study for a Section 7 consultation on the U.S. Army Corps of Engineers’ Potomac River Federal Navigation Project. Specific concerns about this

project included the potential effects of proposed open water disposal of dredged material in the lower Potomac River on shortnose sturgeon. This study included a total

of 4,590 fishing hours conducted at 5 sites in the middle Potomac River. These sites

ranged from approximately 30 to 74 miles downstream of the Washington Aqueduct

discharge site. During this study, no shortnose sturgeon were captured at any of the

5 sites.

As part of the Potomac River sampling study, at NMFS’’ request, the USFWS also

conducted an additional 77 hours of sampling at two other areas in the upper tidal

Potomac River. This area, in the vicinity of Little Falls, Virginia, is near the best

potential spawning habitat for shortnose sturgeon and the Aqueduct discharge site.

No shortnose sturgeon were captured during 1998 and 1999 spring sampling in the

vicinity of Little Falls.

Taken altogether, the evidence does not conclusively demonstrate that shortnose

sturgeon are present in any area that conceivably could be adversely affected by the

discharges. On the other hand, there is sufficient evidence to show that it is at least

a possibility. Since the standard for determining whether ESA consultation is necessary is whether an agency’s action ‘‘may affect’’ a listed species, NMFS believes

that it is in the best interest of the species to consider the evidence as showing that

shortnose sturgeon are present in the Potomac River basin, and may be present in

the action area. This is based on the documentation of shortnose sturgeon in the

lower and middle tidal reaches of the Potomac River as well as the suitable habitat

in this river system. Because sampling for shortnose sturgeon has been limited in

the upper tidal reaches, NMFS does not have sufficient evidence to conclusively

state that shortnose sturgeon are present or absent in this area. While we have no

documented evidence of shortnose sturgeon spawning in the Potomac River, the

habitat in the upper tidal Potomac River at Little Falls is consistent with the preferred shortnose sturgeon spawning habitat in other river systems.

Interagency Cooperation

In 1998, NMFS worked with the U.S. Environmental Protection Agency (EPA)

and other Federal and State agencies to develop measures that would minimize the

impacts of the sediment discharges to spawning anadromous and resident fish in

the short term. The agencies reviewed scientific literature and provided specific recommendations for the operation of the Washington Aqueduct to minimize the adverse effects of sediment discharges on the spawning activities of anadromous fish

and their habitat.

Washington Aqueduct Section 7 Consultation History

While concerns about the effect of the Washington Aqueduct’s discharge on water

quality, fish, and other aquatic life existed prior to 1996, the impacts to shortnose

11

sturgeon specifically were not considered. The capture of shortnose sturgeon in 1996

during the USFWS reward program represented new scientific information that had

to be considered in ESA section 7 consultations.

EPA and NMFS are in informal consultation regarding the effects of the Washington Aqueduct. This is based on the recent documentation of shortnose sturgeon

in the Chesapeake Bay and the Potomac River, the possibility of the Little Falls

area as a spawning site, and our inability at this time to conclusively state whether

a spawning population of shortnose sturgeon is present or absent in this area.

The Army Corps of Engineers, operator of the Washington Aqueduct, funded a

three-year water quality study to assess the discharge and its effects. We understand that a final report of this study has been issued but we have not yet received

the final document. EPA will use the discharge study results and other relevant

data to develop a biological assessment on the potential impacts of the Washington

Aqueduct on shortnose sturgeon. Once NMFS receives this evaluation, NMFS will

determine whether the proposed Federal action is likely to adversely affect

shortnose sturgeon and other listed species. If so, formal consultation will be necessary and NMFS will prepare a biological opinion.

To conclude, I look forward to working closely with Congress and other agencies

for the protection of this species. Thank you for the opportunity to provide this testimony.

Mr. RADANOVICH. We will see what we can do.

Dr. HOGARTH. Thank you.

Mr. RADANOVICH. Ms. Gleason, welcome.

STATEMENT OF PATRICIA GLEASON, CHIEF OF THE MARYLAND AND DISTRICT OF COLUMBIA WATERSHED BRANCH,

WATER PROTECTION DIVISION, U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION 3, WASHINGTON, D.C.

Ms. GLEASON. Good morning, Mr. Chairman and members of the

Committee. My name is Patricia Gleason and I am EPA branch

chief in charge of the National Pollutant Discharge Elimination

System or NPDES permitting in the District of Columbia. Thank

you for your invitation to testify about the Washington Aqueduct.

EPA issues NPDES permits in the District of Columbia. EPA is

also responsible for the regulation of drinking water. We work to

ensure that the Washington Aqueduct complies with all applicable

drinking water regulations and all water discharge permit conditions.

Finally, the Endangered Species Act requires the EPA to ensure

actions are not likely to jeopardize the continued existence of Federally listed endangered or threatened species or adversely modify

or destroy their critical habitat.

Additional information about the typical NPDES permitting process is included in my written testimony but in the interest of time

I would like to turn now to the specific permitting process for the

Washington Aqueduct.

In April 1989, EPA reissued NPDES permit number DC-10 to

the Corps of Engineers for the Washington Aqueduct facility. This

permit allows for the discharge to the Potomac River of residual

solids from cleaning out sedimentation basins. Discharges are allowed only during high flow conditions. This permit had an expiration date of May 1994. The Corps applied for a new permit before

the expiration date and by Federal law any permittee who timely

applies to renew a permit is entitled to continue operating under

that permit until a new one is issued. The permit required the

Corps to study the potential toxicity of the discharge. That study

12

was completed in February 1993, concluding that there were no apparent water quality effects from the release of the discharges.

In early 1995, EPA circulated a new draft permit which produced

significant concern from both the Corps and its customers because

it proposed new conditions setting limits on the concentrations of

iron, aluminum and total suspended solids. This would have forced

the construction of a residual solids facility.

Late in 1995, Members of Congress requested EPA to delay the

permit to give the parties a chance to build a new facility or develop an alternative plan, including a change in ownership and operations of the aqueduct. In April 1996 EPA agreed to delay the

issuance of the permit and to work closely with the customer to resolve these issues.

The Corps, EPA and the customers agreed on October 3, 1997

that contractors would undertake a new study of the aqueduct’s

discharge. EPA believed this study, known as the discharge study,

was necessary to establish a scientifically sound basis for any new

requirements written into the reissued Washington Aqueduct permit.

While the study was being developed, EPA also entered into an

interagency agreement with the Fish and Wildlife Service in April

1998 to determine whether there were any cost-effective, shortterm actions which the aqueduct could employ to avoid potential

impacts to fish species that may migrate or spawn in the vicinity

of the discharges. EPA convened a panel of fisheries biologists

which provided recommendations on minimizing impacts to migratory fish in March 1999. Meanwhile, field work for the new discharge study began in August 1999 and was completed in May of

2001.

The discharge study report was finalized on October 10, 2001.

Based upon the results of this study and other information available to EPA, it appears that the sediments have a negligible effect

upon juvenile and adult fish in the Potomac River. In EPA’s opinion, the studies show that the discharge is not acutely toxic and

that the chronic toxicity tests, while not conclusive, seem to support the conclusion that the discharge is not currently affecting juvenile and adult fish. The study did suggest a potential risk of

smothering fish eggs and larvae if they are in the river at the time

of the discharge.

Based upon the concerns of National Marine Fisheries Service

about the possible presence of shortnose sturgeon and the fisheries

panel that the discharge may have a smothering effect on early life

stages of fish and in light of our on-going Section 7 consultation

about the sturgeon, EPA is considering preparing a draft permit

that will be beyond the present permit requirements to protect the

river and its living resources. EPA is now preparing a draft permit

which will be submitted for public comment by the end of this calendar year.

In addition, as is normal practice, EPA will also consult with the

District of Columbia to assure that the new permit meets water

quality standards. We will continue consulting with Fish and Wildlife Service and National Marine Fisheries to ensure that endangered species and habitat are protected and the requirements of

13

the ESA and the Clean Water Act are met. EPA expects to issue

the final permit next spring.

I would like to thank the members of this Committee for inviting

me to speak here today and I would be happy to answer any of

your questions. Thank you.

[The prepared statement of Ms. Gleason follows:]

Statement of Patricia Gleason, Chief, Maryland and District of Columbia

Watershed Branch, Water Protection Division, U.S. Environmental

Protection Agency, Region 3

INTRODUCTION

Good morning, Mr. Chairman and members of the Committee. My name is Patricia Gleason, and I am the Director of the Water Protection Division at the U.S. Environmental Protection Agency Mid Atlantic Regional Office in Philadelphia. I thank

you for your invitation to testify about EPA’s NPDES permitting process and how

that process applies to the operation of the Washington Aqueduct.

EPA’s ROLE

In accordance with the provisions of the Clean Water Act (CWA), EPA is the permitting authority responsible for issuing NPDES permits in the District of Columbia. In addition to its NPDES permit authority, EPA is also responsible for the regulation of drinking water. EPA works closely with the Washington Aqueduct and its

wholesale customers, the District of Columbia Water and Sewer Authority, Arlington County and Falls Church, Virginia, to insure that the Aqueduct and its customers comply with all applicable drinking water responsibilities and that they provide their individual customers with high quality drinking water. Finally, the

Endangered Species Act (ESA) requires the EPA to utilize its authorities to carry

out programs for the conservation of endangered and threatened species. Enacted

to provide for the conservation of the ecosystems upon which endangered and

threatened species depend, the ESA complements EPA’s CWA authorities to restore

and maintain the biological integrity of the Nation’s waters.

In general, EPA follows the following procedures when it issues an NPDES permit. After EPA receives the permittee’s application for an NPDES permit (or in this

case an application for renewal of the permit), EPA begins work on a draft permit.

A major part of this work is preparing limits for the discharge of pollutants by the

permittee. Permit limits are based on both technology requirements and water quality impacts, and they set conditions on the pollutants to be discharged, such as restrictions on the mass and/or concentration of the pollutants, timing of the discharge, and monitoring requirements. EPA also puts in the draft general conditions

that must be in any NPDES permit. At the same time EPA prepares the draft permit, it also prepares a fact sheet (a detailed explanation of the permit and its terms)

or a statement of basis (a less detailed explanation). Prior to sending the permit out

for public comment, EPA will send a draft version of the permit to the appropriate

State agency for certification that the draft permit will be protective of the state’s water quality standards. In addition, the Region often discusses possible provisions

of the draft permit with Federal and State agencies before it completes the draft

permit. This provides essential information to the Region which it uses to formulate

well considered draft permits.

After EPA has completed the draft permit, the Agency sends out a notice of its

intent to issue the permit with the conditions set out in the draft permit. The notice

also includes a solicitation of comments on the draft permit and the necessary information to request a hearing on the draft permit. EPA sends the notice to, among

others, the permittee; other Federal agencies, including the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS); state agencies with responsibility over fish, shellfish and wildlife in the state; and persons who are on a

mailing list EPA maintains of individuals who have expressed an interest in

NPDES permits. EPA’s NPDES regulations note EPA’s obligation to comply with

the ESA as well as the possibility that EPA may impose conditions based upon comments from FWS or NMFS. Notice of the draft permit is also published in a daily

or weekly newspaper within the area affected by the discharge. Anyone may ask for

a copy of the permit, the fact sheet (or statement of basis) and at the same time

request a public hearing. Depending upon the interest in the permit, EPA may hold

a public hearing to take comments on the draft permit.

After the public comment period is closed, EPA reviews the comments and prepares a document responding to the comments. At the same time, the Agency prepares a final permit, making any changes that are needed to respond to the public

14

comments. EPA then issues the permit and sends a notice to anyone who sent in

comments on the draft permit that the Agency has taken this action.

In taking any action to issue a permit, EPA must comply with the applicable requirements in section 7 of the Endangered Species Act (ESA) and 50 C.F.R. §Part

402. Under section 7, EPA must ensure, in consultation with the FWS and NMFS,

that issuance of the permit is not likely to jeopardize the continued existence of any

listed threatened or endangered species or result in the destruction or adverse modification of designated critical habitats. EPA has recently entered into a Memorandum of Agreement with the Fish and Wildlife Service and National Marine Fisheries Service that describes the process that the agencies will follow in consulting

on NPDES permits. This process, which tracks the requirements in 50 C.F.R. Part

402, includes a determination by EPA whether the permitted activity may affect a

listed species and the need for informal or formal consultation. Based on the consultation, EPA imposes any permit conditions needed to ensure that the discharge

is not likely to jeopardize the continued existence of a listed species or result in the

destruction or adverse modification of designated critical habitat. Should the Service(s) anticipate incidental take of listed species, EPA also considers changes to the

permit required by the Service(s) for incidental take to be authorized.

Any person who participated in the permit-issuance process is entitled to appeal

a final permit to an administrative body at EPA, the Environmental Appeals Board,

which can review whether the permit is based on a finding of fact or conclusion of

law which is clearly erroneous, including a claim that the permit fails to comply

with the ESA.

The U.S. Army Corps of Engineers (COE) owns and operates the Washington Aqueduct facility. The functions of the facility include the collection, purification, and

pumping of an adequate supply of clean water for the District of Columbia, Arlington County (VA), and the City of Falls Church (VA). The Washington Aqueduct provides the water supply for approximately one million residents of the District of

Columbia and Northern Virginia. The area residents receive water through distribution systems owned and operated by the Water and Sewer Authority or WASA (for

the District of Columbia), Arlington County, and the City of Falls Church (the ‘‘Customers’’). Water distribution is the responsibility of the Customers.

On April 3, 1989, EPA reissued NPDES Permit No. DC 0000019 to the COE for

the Washington Aqueduct facility, effective date May 3, 1989. (EPA had previously

issued this permit in 1983.) This NPDES permit allows for the discharge of residual

solids from cleaning out the sedimentation basins used in water treatment to the

Potomac River. Discharges to the Potomac are allowed only during high flow conditions. During these high flow events, the Potomac River contains a large quantity

of solids. The Aqueduct’s discharge represents less than twenty percent of the annual total river load of solids. The permit does not require any treatment of the discharge.

The present permit contains monitoring requirements but no specific effluent limits on Total Suspended Solids, Total Aluminum, Total Iron, and Flow in the permit.

The permit does prohibit the discharge of floating solids or visible foam. The permit

also requires the COE to meet a pH level of not less than 6.0 standard units nor

greater than 8.5 standard units. The COE must take monitoring samples at the

time of discharge. Samples are taken of pH, Total Suspended Solids, Total Aluminum, Total Iron, and Flow. These samples provide EPA a representation of the

discharge’s volume and nature. The COE reports its monitoring results to EPA on

Discharge Monitoring Reports.

This permit had an expiration date of May 2, 1994. The COE applied for a new

permit before the expiration date, and under 5 U.S.C. § 558(c) and 40 C.F.R.

§ 122.6(a), the prior permit continues in effect by operation of law pending EPA’s

decision to issue a new permit.

The NPDES permit required COE to conduct several studies on the toxicity of the

discharge. The COE’s contractor completed the initial studies and issued a report

in February 1993. This report concluded that there were no apparent water quality

effects from the release of the discharges.

In early 1995, EPA prepared a draft permit for comment. A copy of the permit

was sent to the District of Columbia and the COE. In February 1995 significant concern arose from the Customers and COE because of the proposed new conditions in

the draft permit. The new conditions would have set limits on the concentrations

of iron, aluminum and total suspended solids from the Aqueduct’s discharge. This

would have forced the construction and use of a residual recovery facility. The Customers expressed concern about the cost of such a facility. One issue for them was

their ability to provide the lowest possible capital and operating costs for the Aqueduct users. Both the COE and the Customers also questioned the environmental necessity of a recovery facility.

15

Late in 1995, Members of Congress requested EPA to delay the issuance of the

permit to give the various parties involved a chance to build a new facility or develop an alternate plan including a change in the ownership and operations of the

Aqueduct. As a result, in April 1996 EPA agreed to delay the issuance of the permit

to provide time to explore the feasibility of turning over the operations of the Aqueduct to another operator. EPA also agreed to work closely with the Customers to

resolve the issues.

On August 6, 1996, the Safe Drinking Water Act Amendments of 1996 (Public

Law 104–182) became effective. Section 306 of the Amendments outlined a plan for

the future operations of the Aqueduct. Congress encouraged the establishment of a

non–Federal entity to take over the operations of the Aqueduct. Section 306 also required that, before reissuing the NPDES permit, EPA must consult with the Customers ‘‘regarding opportunities for more efficient water facility configurations that

might be achieved through various possible transfers of the Washington Aqueduct.

Such consultation shall include specific consideration of concerns regarding a proposed solids recovery facility, and may include a public hearing.

After discussions among the COE, EPA, and the Customers, these parties agreed

on October 3, 1997, that contractors for the Customers would undertake a new

study of the water quality effects of the Aqueduct’s discharge and would address

issues raised by EPA (‘‘Discharge Study’’). The parties agreed that the Discharge

Study would include six parts: an effluent dilution and fate study, where a computer

simulates river flow and the suspended solid’s plume to determine acute and chronic

dilution factors as a function of effluent loading and river flow; effluent toxicity testing to determine the toxicity of discharges to freshwater species; effluent chemical

characterization, using existing effluent discharge data to calculate preliminary projections of receiving water concentrations in comparison to water quality criteria; an

analysis of the Potomac’s fishery to determine the effect of the discharge upon key

anadromous and resident fish species; an analysis of the Potomac’s macroinvertebrate community to characterize the community prior to and after discharge; and an analysis of a modification of the aluminum criteria in the event the

other parts of the Aqueduct Study show that this would be desirable. Recognizing

the potential that new effluent limits and special conditions in a revised NPDES

permit could mandate the expenditure of large amounts of public funds, EPA believed this study was necessary to establish a scientifically sound basis for any new

requirements written into the reissued Washington Aqueduct permit.

While the study was being developed, EPA entered into an Interagency Agreement (IAG) with FWS in April 1998 for assistance in developing discharge guidelines for the Washington Aqueduct sediments. The purpose of this work was to determine whether or not there were any cost effective, short term remedies which the

Washington Aqueduct could employ to avoid potential impacts to fish species that

may migrate or spawn in the Potomac River in the vicinity of the Aqueduct discharges. In order to perform this work, EPA convened a panel of fisheries biologists

from the District of Columbia, National Marine Fisheries Service, State of

Maryland, FWS and the Interstate Commission on the Potomac River Basin (1998

Fisheries Panel) to provide recommendations on minimizing impacts to migratory

fish from sediment discharges at the Aqueduct.

In March of 1999, the FWS submitted, in a report to EPA, the results of the 1998

Fisheries Panel’s study and recommendations. EPA has discussed the results of the

report with the COE. One recommendation by the Panel was that there should be

no discharge in the Spring when anadromous fish spawn. This recommendation is

difficult for the COE to implement because Springtime is often the only time during

the year when high flow conditions are present in the Potomac and the COE cannot

predict if it will be able to discharge later in the year. As stated earlier, the NPDES

Permit limits the Aqueduct’s discharge to high flow conditions.

On June 24, 1999, EPA approved the study plan for the Discharge Study. At

EPA’s request, staff from the Fish and Wildlife Service’s (‘‘FWS’’) Environmental

Contaminants Branch from the Chesapeake Bay Office assisted EPA in the initial

planning for the Discharge Study. EPA discussed the study plan with the FWS prior

to approving it. The Discharge Study was performed by scientists at EA Engineering, Science & Technology, Inc. under contract to the Metropolitan Washington

Council of Governments on behalf of the Customers.

Besides assisting EPA with the planning of the Discharge Study, FWS’ Environmental Contaminants Branch has assisted in the review and interpretation of data

generated by the Discharge Study. In addition, at the request of several citizen

groups, FWS has participated with EPA in public meetings and informational sessions, most notably in the Spring of 2000 and on October 10, 2001. EPA was at both

meetings to explain the techniques used during the collection of environmental data

for the Discharge Study. EPA has reviewed the raw data which resulted from the

16

effluent toxicity testing part of the Discharge Study and committed resources to review the draft Discharge Study and to follow through, as necessary, to explain the

results of the Discharge Study to the public.

Field work for the studies began in August of 1999 and they were finally completed in May of 2001. The Discharge Study Report was finalized by October 10,

2001. Based upon the results of the study and other information available to EPA,

it appears that the sediments have a negligible effect upon juvenile and adult fish

in the Potomac River. In EPA’s opinion, the acute toxicity studies showed that the

discharge is not acutely toxic and the chronic toxicity tests, while not conclusive,

seemed to support the conclusion that the discharge is not currently affecting juvenile and adult fish. The study did suggest a potential risk of smothering fish eggs

and larvae if they are in the river at the time of the discharge.

Based on NMFS’s continued concern about the presence of shortnosed sturgeon,

and the Fisheries Panel’s similar concern that the discharge may have a smothering

effect on early life stages of fish, and in light of our ongoing section 7 consultation

about the sturgeon, EPA is considering preparing a draft permit that will be beyond

the present permit requirements to protect the river and its living resources.

With the recommendations of the FWS panel and the completion of the Discharge

Study, EPA is now in a position to prepare a draft NPDES permit. EPA anticipates

that a draft permit will be submitted for public comment by the end of calendar

year 2001. This is an important part of the permitting process because it allows the

public to express their opinion regarding the acceptability of the permit. In addition,

as is its normal practice, EPA will also consult with the DC Department of Health

to assure that the new permit meets DC Water Quality Standards. We will continue

consulting with US Fish and Wildlife Service and National Marine Fisheries Service

to ensure that endangered species and habitat are protected. In addition, since that

State of Maryland and the Commonwealth of Virginia share the waters of the Potomac with the District of Columbia, they too will be provided the opportunity to

comment on the draft permit. After reviewing the comments, EPA will then prepare

a response to the comments and issue the final permit. The length of time it will

take to issue a final permit depends on a number of factors, including the number

and content of public comments received, and results of Congressionally mandated

consultation with the Customers. At this time, EPA would expect to be in a position

to issue the final permit in the Spring 2002.

As described above, EPA consults with the Service(s) whenever discharges under

an NPDES may affect a listed species. EPA has discussed with the FWS and NMFS

whether listed species, including the shortnose sturgeon, are present in areas potentially impacted by discharges from the Aqueduct. EPA is engaged in informal consultation with the FWS regarding potential effects, if any, on listed species. The

shortnose sturgeon is under the jurisdiction of NMFS, which is the expert agency

with regard to this species. According to NMFS, there are no data documenting the

presence of sturgeon in waters affected by the discharge, although the presence of

shortnose sturgeon has been documented in the lower and middle tidal reaches of

the Potomac River and the habitat in the upper tidal Potomac River at Little Falls

is similar to shortnose sturgeon spawning habitat in other river systems. Because

sampling for shortnose sturgeon has been limited to 77 hours of sampling in two

areas in the upper tidal reaches, additional data gathering would be necessary to

conclusively prove its presence or absence. While EPA is not required to consult on

an action that will have no effect on listed species, EPA and NMFS are taking a

conservative approach and are currently engaged in informal consultation regarding

the sturgeon. EPA will complete this process in accordance with the consultation

procedures in the Service regulations and include any permit conditions needed to

ensure compliance with the requirements of section 7 of the Endangered Species

Act. In addition the Agencies have held telephone conversations discussing the steps

that they would take to deal with the possibility that the reissuance of the NPDES

Permit might affect these species.

In sum, I would characterize our status at this point in reissuing the Aqueduct’s

permit as gathering information, including the information shared as a result of our

consultations with the Services, so that we can prepare a draft permit that meets

the requirements of the ESA and the CWA. I would like to thank the members of

this committee for inviting me to speak here today. Since these matters have been

the subject of litigation, for the past year a significant amount of speculative information has been circulated. I appreciate the opportunity to appear before you to explain the current status of this important matter. Thank you.

Mr. RADANOVICH. Thank you very much.

Col. Fiala, thank you and welcome.

17

STATEMENT OF COLONEL CHARLES J. FIALA, JR., COMMANDER AND DISTRICT ENGINEER, BALTIMORE DISTRICT,

U.S. ARMY CORPS OF ENGINEERS, BALTIMORE, MARYLAND

Col. FIALA. Thank you, Mr. Chairman, members of the Committee. I appreciate the opportunity to testify this morning. I am

Colonel Charles J. Fiala, Jr., commander and district engineer of

the Baltimore District Corps of Engineers, United States Army.

The Baltimore District has a long and distinguished history of

service to the nation, the region and the city. Members of my

1,200-person staff continue to support recovery operations at the

World Trade Center and at the Pentagon. For more than two decades the Baltimore District has been in the forefront of environmental restoration in the Chesapeake Bay, including projects that

have provided improved water quality and habitat in the Potomac,

Anacostia and Susquehanna Rivers.

You asked me to provide information on the legally permitted

discharges of the Washington Aqueduct, a division of the Baltimore

District. I would first like to summarize the major role the aqueduct plays in supporting our nation’s capital and the surrounding

areas, then respond to the issues raised by your invitation.

In 1853, at the direction of Congress, the Corps began construction of the aqueduct. We have supplied water to the District of Columbia since 1859. Many of the original structures from the 1850’s

are still in operation and many others date back to the 1920’s.

Most of the real estate supporting the aqueduct’s mission and current treatment processes were acquired and functioning decades

before the C&O Canal became a national park.

Today the aqueduct provides all water supplied to Washington,

D.C., Arlington County, Virginia and the City of Falls Church, Virginia. This area is home to many agencies that support the administration and the defense of this country, including the very building we are meeting today; in fact, the water we have sitting out

here today.

For example, the aqueduct supplied water used to fight fires at

the Pentagon on 11 September. Providing high-quality, safe and affordable water to approximately 1 million customers in these areas,

particularly in light of the 11 September attacks on our country,

is one of our highest priorities.

The aqueduct is a unique Federal institution in that it operates

like a business. It gets its operational and capital improvement

funds from the fees it charges its customers for the water it supplies. It is regulated by the Safe Drinking Water and Clean Water

Acts and takes its compliance responsibilities seriously. It operates

in accordance with the National Pollutant Discharge Elimination

System permits issued to it by both the State of Maryland and the

Environmental Protection Agency. These permits allow the aqueduct to make routine discharges from sediment basins and infrequently maintained-related discharges.

All water treated by the aqueduct comes from the Potomac River

that naturally transports a very large sediment volume. Treatment

involves a three-step process that includes sediment, filtration, and

disinfection. In the case of the aqueduct, sediment removal begins

in an initial sediment basin, then occurs more actively in six large

18

basins with the aid of a coagulant, aluminum sulfate, that is typically used in the water production industry.

Periodically these six sedimentation basins must be cleaned of

the sediment build-up. Their contents, which include raw or river

water, the accumulated sediments, and the accumulated coagulant,

are flushed into the Potomac River, in keeping with the terms of

the EPA discharge permit. We estimate that 95 percent of the sediments discharged from naturally occurring sediment from the river

and 5 percent of the solids are due to the coagulant. The volume

of the solids discharged to the Potomac River from the six basins

is only about one-half of the total volume of solids removed from

the water, taken from the river. At a maximum, it represents less

than 1 percent of the solids in the river flow during the discharge

period.

With respect to the nonroutine discharges for plant maintenance,

the State of Maryland permits the aqueduct to discharge raw

water—that is, untreated water—into the streams and on lands

across park property. EPA has also issued the aqueduct a permit

that allows discharge of raw water dosed with coagulant if maintenance is required on a major conduit. The path of this discharge

is open and crosses the park property. Discharges of this nature

seldom occur, once every 2 years for approximately 6 hours.

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

ground drain water from under the sediment basins. That water

goes directly to the Potomac River. The other is a drain water from

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

once in 10 years and involve sediment-free, clear, unchlorinated

water.

All of our discharge points or outfalls are properly regulated and

comply with Federal and state permits. At this time there are no

known effects from these discharges on the C&O Canal Historic

Park property.

The next issue you asked me to discuss is the impact of sediment

discharges, if any, on the shortnose sturgeon. As you are aware,

that particular question is subject to current litigation brought on

by the National Wilderness Institute against several of the Federal

agencies testifying here today. In accordance with the Endangered

Species Act, consultation among Federal agencies regarding the

shortnose sturgeon is on-going at this time.

I can mention that at the request and direction of the EPA, we

contracted for two significant scientific efforts to study the impacts,

if any, of sediment discharges upon aquatic life of the Potomac

River. Based on the study plan coordinated with Fish and Wildlife,

approved by the EPA Region 5 and performed in accordance with

accepted scientific procedures and analysis, the most recent study

was just completed and sent to these agencies. EPA is now determining whether to reissue the aqueduct’s current permit for the

sediment discharges. Meanwhile we continue to work with the EPA

and our other Federal parties to do what is best for the environment and ensure the availability and safety of the drinking water

we supply this region.

Again I thank you for this opportunity to be here this morning

to apprise the Subcommittee about the operations of the Washington Aqueduct and I will respond to your questions.

19

[The prepared statement of Col. Fiala follows:]

Statement of Colonel Charles J. Fiala, Jr., Commander and District

Engineer, Baltimore District, U.S. Army Corps of Engineers

Mr. Chairman and members of the subcommittee, thank you for inviting me to

testify before you today. I am Colonel Charles J. Fiala, Jr., the Commander and District Engineer of the Baltimore District, United States Army Corps of Engineers.

You invited me here today to provide information regarding the legally permitted

discharges of the Washington Aqueduct, which is a division within the Baltimore

District. I would like to provide a brief background of the significant role the Washington Aqueduct plays in support of our nation’s capital and the surrounding areas

and then respond to the issues raised in your invitation.

At the direction of Congress in 1853, the United States Army Corps of Engineers

began construction of the water delivery system that is today known and operated

as the Washington Aqueduct. The United States Army Corps of Engineers has continuously supplied water for drinking, fire protection, and a host of other purposes

to the City of Washington and the District of Columbia since 1859. Many of the

original structures from the 1850s are still in operation and many others date back

to the 1920s. Consequently, many of the real estate interests acquired to support

the Aqueduct’s mission and the treatment processes currently used by the Aqueduct

were acquired and functioning decades before the C&O Canal National Historic

Park became a national park.

Today, we own and operate wholesale water production facilities that provide all

of the water supplied to Washington, D.C., Arlington County, Virginia, and the City

of Falls Church, Virginia, an area home to numerous agencies which support the

administration and defense of this country including the very building we are meeting in today. By way of example, the Washington Aqueduct supplied the water used

to fight the fires at the Pentagon on September 11, as it would for any fire in any

one of these three jurisdictions. Providing high quality, safe, and affordable water

to the approximately one million consumers in these areas, particularly in light of

the September 11 attack on this country, is one of my highest priorities.

The Washington Aqueduct’s manager works under my general supervision. The

Washington Aqueduct is a unique Federal institution. While much of the Federal

Government is totally or largely dependent upon congressional appropriations, the

Washington Aqueduct operates as a business. It receives the funds it needs to operate by way of the fees it charges its three local government customers for the water

it supplies. Capital improvements are also funded by the customers. At the same

time, like all of the other drinking water production facilities, the Washington Aqueduct is regulated by the terms of the Safe Drinking Water Act and the Clean Water

Act. The Washington Aqueduct takes its compliance responsibilities seriously. It operates in accordance with the National Pollutant Discharge Elimination System

(NPDES) permits issued to it by both the State of Maryland and by Region 3 of the

Environmental Protection Agency (EPA).

To respond to the issues you raise, let me clearly state that all water treated by

the Washington Aqueduct comes from the Potomac River and that approximately

95% of the sediments the Washington Aqueduct discharges back into the Potomac

River are Potomac River sediment. Treatment is a three-step process that includes

sedimentation, filtration, and disinfection. The large volume of sediment that is naturally transported by the Potomac River and drawn into the treatment process must

be removed. In the case of the Washington Aqueduct, sediment removal begins in

an initial settlement basin, then occurs more actively in six large basins with the

aid of a coagulant. The coagulant currently used by the Washington Aqueduct is

aluminum sulfate. This is typical of the water industry.

Periodically, these six sedimentation basins must be cleaned of the sediment

build-up. When that occurs, the contents, which include raw water, i.e. river water,

the accumulated sediments, and the accumulated coagulant, are flushed to the Potomac River in accordance with the terms of the NPDES permit issued by EPA

Region 3. Approximately 95 percent of the sediments discharged are naturally occurring sediment transported by the river before the water was drawn into the

treatment process. We estimate that about five percent of the solids of any discharge

are attributable to the coagulant. At the last stage of the basin cleaning, some finished water (i.e. drinking water) is used in fire hoses to flush out the last of the

sediments. That drinking water does contain chlorine, but the physical action of the

water on the walls and bottom of the basin volatizes some of that chlorine. The remaining chlorine content of the drinking water used for this purpose reacts with the

sediment effectively using up all free chlorine potential.

20

To put the discharges into perspective, the current permit allows discharge only

when the flow of the Potomac exceeds 3.5 billion gallons per day. Normally a discharge event from one of the sedimentation basins will be completed in a 24-hour

period. From the most often drained basins, the volume of the discharge would be

in the range of 12 to 18 million gallons, which as a maximum is about one percent

of the flow of the river during that 24-hour period. The volume of solids discharged

to the Potomac River from the six sedimentation basins is only about one half of

the total volume of solids that were removed from the water taken from the River.

That other half remains in the initial sedimentation basin which acts as a pre-sedimentation basin before the raw water is dosed with a coagulant in the formal treatment process.

With respect to the C&O Canal National Historic Park, the Washington Aqueduct, in accordance with EPA and State of Maryland permits, conducts two types

of discharges. They are the just-described routine sedimentation basin discharges

that occur approximately 16 to 20 times a year and infrequent discharges of raw

or partially treated water to allow for maintenance of Washington Aqueduct infrastructure.

The routine water treatment solids, i.e., sediment, discharges use three conduits

to get those solids to the Potomac River. One of those conduits is a closed pipe that

runs underground through the Park’s property and discharges into the Potomac

River approximately 12 to 16 times per year. A typical discharge lasts 12 hours.

These discharges are in accordance with the EPA NPDES permit. At the point of

discharge, the sediment enters the Potomac River below water level from a concrete

structure slightly offshore. No sediment is deposited within the C&O Canal National

Historic Park at that location.

The other two conduits discharge onto Park property approximately 75’’ from the

shore of the Potomac River and follow a channel into the River. These discharges

are also in accordance with the EPA NPDES permit and occur approximately 4 to

6 times per year for approximately 12 to 18 hours. The closed discharge pipes at

those locations run underground from the sedimentation basins and end in a

headwall about 50 to 75 feet from the river. A small channel a few inches deep at

each location extends from the headwall, traveling perpendicular to the river, and

transports the liquid and the solids until they enter the River and are mixed and

carried downstream. During a discharge, the sediment is confined to that channel

and does not otherwise affect the surrounding land. There is no build- up of residue

from the sediment discharges on Park land.

With respect to the non-routine discharges to accomplish plant maintenance, the

State of Maryland, under a Maryland General Discharge Permit, allows the Washington Aqueduct to discharge raw water into streams and on lands which cross Park

property. These discharges are infrequent, approximately once a year. In only one

location where infrequent discharge occurs is there the potential for chlorinated

water to leave the Washington Aqueduct treatment plant and enter the waters of

the State of Maryland. This may occur approximately 5 to 6 times per year for a

few hours at a time. In that instance, a dechlorination station is used to properly

dechlorinate the water before it leaves the treatment plant.

EPA has also issued Washington Aqueduct an NPDES Permit (DC0000329) that

allows discharge of raw water dosed with coagulant should maintenance be required

on a major conduit. The path of this discharge is open and crosses Park property.

Discharges of this nature occur infrequently, approximately once every two years,

for approximately six hours. There are two other points allowed under this permit.

One is to drain ground water from under sedimentation basins. That water goes directly to the Potomac River. The other is to drain water from another large conduit

to Rock Creek. That discharge might occur only once in 10 years and would be clear

unchlorinated water.

All of our discharge points or outfalls are properly regulated by and comply with

NPDES permits. Where other private or public properties are crossed, proper land

usage rights have been obtained.

At this time, there are no known adverse effects on C&O Canal National Historic

Park property as a result of these discharges.

The next issue associated with the Washington Aqueduct’s sediment discharges

that the committee has asked me to discuss is the impact of the discharges, if any,

upon the shortnose sturgeon. That particular question is the subject of current litigation brought by the National Wilderness Institute against a number of the Federal agencies testifying here today. My testimony is therefore somewhat constrained

so as not to compromise the Government’s ability to present a sound defense in this

litigation. In accordance with the Endangered Species Act, consultation among the

Federal agencies regarding the shortnose sturgeon is ongoing at this time.

21

At the request and direction of the Environmental Protection Agency, the United

States Army Corps of Engineers contracted for two significant scientific efforts to

study the impacts, if any, of the sediment discharges upon the aquatic life of the

Potomac River. The first effort was a study completed by Dynamac Corporation in

1993. This report concluded that there were no apparent water quality effects from

the release of the discharges. The second effort, based upon a study plan coordinated with the United States Fish and Wildlife Service and approved by EPA

Region 3, was a study conducted by EA Engineering, Science, and Technology, Inc.,

which has just been completed. Washington Aqueduct provided the report for that

study to EPA Region 3 on October 5. This report is based upon accepted scientific

procedure and analysis. Based upon the results of the study and other information

available to EPA, it appears to us at the Corps that the sediments have a negligible

effect upon the Potomac River. The executive summary from the report is attached

as an exhibit to my testimony. EPA is in the process of determining whether to reissue the Washington Aqueduct’s current NPDES permit for the sediment discharges, and, if so, under what conditions.

In conclusion, the United States Army Corps of Engineers continues to work closely with the EPA and all of our other Federal agency partners both to do what is

best both for the environment and to ensure the availability and safety of the drinking water we supply to this region.

Again I thank you for the opportunity to be here this morning to apprise the subcommittee of the operations of the Washington to Aqueduct and to respond to your

questions.

Mr. RADANOVICH. Thank you, Col. Fiala.

Mr. Gordon.

STATEMENT OF ROB GORDON, DIRECTOR, NATIONAL

WILDERNESS INSTITUTE, ALEXANDRIA, VIRGINIA

Mr. GORDON. Thank you, Mr. Chairman, Committee members.

Thank you for holding this hearing to investigate the damage done

to the flora, fauna and habitat and the natural and cultural values

of the C&O National Park from the Washington Aqueduct’s discharges.

Mr. Chairman, you have seen the massive black plume and tons

of chemically treated sludge seep down the Potomac. According to

the Corps, it is the equivalent of dumping 15 dump-trucks a day

into the Potomac.

Mr. RADANOVICH. Mr. Gordon, I hate to be in the practice of interrupting opening statements but I just wanted to draw people’s

attention to the picture over there. The light brown color is the

high water turbidity, normal turbidity of the Potomac River. Especially after rains, you will notice how it is. The black plume down

there is the actual discharge of sediment from the basins into the

river. That is black sludge there.

I believe we have little packets on your desk there that shows

you exactly. We do not have enough for every member; I am sorry,

but that is what the sludge looks like and that is the contrast of

it happening in the Potomac River there near the C&O Canal.

The other picture there is a nighttime picture of the foam. There

is a green stick in the water there; that is an oar and that is rowing through the sludge as it is being dumped into the river at

nighttime. Then the other picture to the right there is the foam on

the Potomac River after the dumping the night before.

So in reference to the plume and the effect of it on the Potomac,

those are visual examples of what is going on there. Thank you.

Mr. GORDON. Do I get an extra minute?

Mr. RADANOVICH. Yes, you get an extra minute.

22

Mr. GORDON. According to the Corps, the dumping that you have

just seen the photographs of is the equivalent of 15 dump-trucks

a day into the Potomac. The Park Service would never tolerate this

in Yosemite or Yellowstone.

As recently as August, the Corps discharged into Little Falls

Branch with chlorine levels that exceeded Maryland’s limit by five

times, a limit below which chlorine is used to kill aquatic life that

might otherwise grow in nuclear power plant cooling water intakes.

Rather than fix these problems, you are hearing today from

agencies that defend the practice, stating that what you are seeing

is not really what you are seeing and that the standards somehow

do not apply here and that although they have had studies, draft

permits, hearings and more studies and another draft permit, you

should trust that they will work it out, even though the dumping

really is not bad or getting any special treatment.

The Corps has stated that the sludge is from the river and includes a little alum. Little means 10,000 tons, almost three 10-ton

dump-trucks a day all year long. How long would it take for the

average American to be indicted, convicted and imprisoned for

dumping just one dump-truck of alum into a pond outside the Beltway?

The Corps discussed diverting its sludge to a D.C. sewage facility

30 years ago and its 1989 permit called for provisions for a sludgehandling system. A later EPA consent order required design work

for a dewatering facility so sludge could be hauled off-site, and EPA

draft permits had limits that would have required a treatment facility. These permits were delayed until the question of transferring the facility was resolved, which the Army decided not to do.

Then, rather than solve the problem, yet another study was undertaken. This study, too, argues it is okay to dump without any limits. It, however, makes conclusions that cannot be substantiated

and even in a reading most favorable to the Corps, finds that alum

is discharged at rates that exceed EPA’s criterion and itself

recommends terminating discharges for a third of the year and

extending one discharge pipe several hundred feet to dilute nowtoxic discharges to nontoxic levels.

Why has the dumping been allowed? Corps and EPA documents

express concern about ‘‘trucking through an affluent neighborhood’’

or ‘‘high-value areas’’ and the ‘‘political nature of the neighborhood’’

and worry that ratepayers oppose an increase. One EPA official remarked about wholesale customers who ‘‘worked over’’ public officials who are ‘‘shocked’’ to learn of the dumping. And, of course,

there have been letters, memos, and meetings with Senators, Representatives and other officials.

The Corps defends its practice, stating that it has been doing this

since 1927. How many other big point source polluters can tell you

that the Clean Water Act has had no effect on them? How many

can tell you it is okay with the EPA and the National Park Service

and the National Marine Fisheries Service to dump in a national

park and habitat considered the primary, if not only spawning

ground of a Federally endangered species that is considered to be

generally present? The answer is none.

Please listen carefully to the testimony and the comments you

will hear today and then contact the agency heads represented

23

here and ask them if, in fact, their agencies policies were accurately represented because when you strip away the parsing, here

is what you are being told.

NPS: It is okay to dump tens of millions of pounds of chemically

treated sludge and tens of thousands of gallons of water with chlorine levels that exceed state standards by fivefold into a national

park and to dump sludge that is toxic to aquatic life and threatens

the survival of fish species of concern on NPS-controlled river bottoms.

Corps: It is okay to dump into U.S. waters in direct violation of

an NPDES permit and with more than 83 percent of the discharges

above Chain Bridge having concentrations of total suspended solids

that are greater than the effluent found to be acutely toxic to fish

in its own study and to do so at night to intentionally obscure the

discharges’ effects.

NMFS: It is okay to discharge hundreds of thousands of tons of

chemically treated sludge into suitable spawning habitat for an endangered fish it considers present generally so long as no study following NMFS’s protocol has been taken or so long as one can argue

that any endangered fish that is killed without an incidental take

statement may have come to this river from another.

And EPA: It is okay to dump into an American Heritage river

and a tributary of the Chesapeake Bay with total suspended solids

concentrations in the tens of thousands and to routinely exceed an

EPA pollutant criterion and to allow this, at least in part and in

spite of the EPA administrator’s focus on environmental justice because the neighborhood around the facility is affluent.

Each of the agencies represented here today and charged with

protecting our nation’s resources actions are consistent with the positions I have just described. Exactly, I am not sure why but it is

my hope that you will find out and help fix the problem. Thank

you.

[The prepared statement of Mr. Gordon follows:]

Statement of Rob Gordon, Director, National Wilderness Institute

Mr. Chairman:

Thank you for holding this hearing to investigate the damage done by discharges

from the Washington Aqueduct to the flora, fauna and habitat and the natural and

cultural values of the Chesapeake and Ohio National Historic Park. Sadly these discharges are conducted by the Corps and permitted by EPA.

For years, the discharges from the Washington Aqueduct have harmed this

National Park that otherwise retains tremendous natural beauty near the heart of

a major metropolitan area and is built around one of the greatest American Heritage Rivers, the Potomac River, an irreplaceable symbol flowing through our Nation’s

Capital. Sections of this unique park were surveyed by our first president. The Potomac is enormously popular with fishermen, paddlers or other recreationalists because of its unique physical characteristics from the majesty of Great Falls to the

spawning grounds below Little Falls that may be the primary if not only spawning

grounds of a highly endangered fish.

This EPA permitted dumping by the Corps clearly violates numerous Park Service

Rules, the Clean Water and the Endangered Species Act and is an offense to those

who appreciate this park.

When the Corps dumps a massive black plume with a rotten stench clouds the

Potomac as its seeps through the center of the Park. Millions of pounds of sediment

with alum are dumped into the Potomac within a matter of hours.

According to the Corps of Engineers itself, it is the equivalent of dumping 15

dump trucks a day, every day all year into the Potomac. Let me repeat that—15

dump trucks a day, every day all year into the Potomac. The National Park Service

would never—never—tolerate this in the Grand Canyon, at Glacier, at Yellowstone

24

or the Everglades. This single undisputed fact, I think, would seem to the average

American all the rationale that is necessary for this hearing to conclude that this

practice is wrong, should have stopped years ago and must be immediately addressed. It is disgraceful and deeply disturbing that agencies charged with

stewarding our nation’s treasures and protecting our natural resources are party to

this.

As recently as August of this year this same facility was found to be discharging

treated water into Little Falls Branch in the National Park having chlorine levels

that exceed Maryland state standards by 4 and 5 times.

But rather than fix these problems, you are hearing today from officials who have

been actually telling people that what you have seen really isn’t that bad, and whatever standards exist somehow what they do does not violate them and that they

should just given more time to work it out.

Documents show the Corps actually discussed diverting this discharge to D.C.’s

Blue Plains sewage treatment facility about three decades ago and the Clean Water

Act permit issued in 1989 called for provisions for a ‘‘sludge handling system.’’ A

consent order issued by EPA after the Corps violated water quality standards related to the safety of drinking water required the Corps to actually conduct much

of the design work of a dewatering facility so that the tons of pollution could be

hauled offsite. Around that time EPA draft permits would have placed limits on the

discharges resulting in the requirement that a treatment facility be constructed.

These new permits were delayed until the question of transferring ownership of the

facility was resolved. The Army reviewed transferring ownership but then decided

it would not transfer ownership of the facility. Rather than solve the problem yet

another study was undertaken.

The Corps’ newest study is yet another excuse to further delay addressing the

problem and continue the dumping into the Potomac without any limits whatsoever

on total suspended solids and alum. The new study, however, makes conclusions

that cannot be substantiated with the data generated. The Corps own recommendations call for terminating discharges for a third of the year and extending one discharge pipe several hundred feet into the river to sufficiently dilute discharges so

that they will not be toxic in the future.

This practice—the midnight dumping of millions of pounds alum tainted sludge

that measures in the 10,000 of milligrams of suspended solids per liter—is not reasonable or common. The Corps has, somewhat amazingly, defended their practice by

stating that it has been doing it this same way since 1927. How many other enormous point source polluters can tell you unabashedly that the Clean Water Act has

had no effect on the way they dump? How many can tell you they don’t have to

change their practices even though they dump in and through a Untied States national park and into habitat considered the primary if not only spawning ground of

a Federally endangered species that regulatory agencies say is ‘‘present generally.’’

The answer is no other facility in the entire country and it is time for this facility

to stop harming a national park, an American Heritage River, our Nation’s Capital

and an endangered species, abide by the policies, standards, and laws applied to the

rest of America, and join the modern world.

Mr. RADANOVICH. Thank you, Mr. Gordon.

Mr. Leisch, welcome.

STATEMENT OF GORDON LEISCH, FIELD BIOLOGIST, FORMERLY OF THE DEPARTMENT OF THE INTERIOR, OFFICE OF

ENVIRONMENTAL POLICY, ARLINGTON, VIRGINIA

Mr. LEISCH. Mr. Chairman, thank you for holding this hearing

and giving me the opportunity to testify.

My name is Gordon Leisch. I have a bachelors degree in biology,

a masters degree in biology and ecology. From 1970 until 1974 I

was employed by the U.S. Army Corps of Engineers Omaha District where, as a field biologist, I wrote environmental impact statements and I wrote the environmental protection section to civil

work contracts. From 1974 until I retired in 1997, I was in the Department of Interior and I worked in the Office of Environmental

Policy.

25

I have been an avid fisherman in the Potomac River all my life.

I grew up close to Little Falls. I still fish there today. I am on the

river almost every day of my life. I have witnessed the effects that

these discharges have upon the Potomac River and can tell you

from firsthand experience that they are causing serious harm. As

soon as the discharge hits the main body of the Potomac River, all

feeding activity ceases. All feeding and chasing of the fish either

goes to the D.C. side or it just totally disappears. You can see fish

avoiding the area. The cormorants leave. The great blue herons

leave. They go to other places. If you look above the outflow

upriver, everything is normal. Fishing goes on.

I can recall during my high school days in the early 1950’s there

were infrequent discharges from Dalecarlia Reservoir into Little

Falls Branch and the old spillway which is now the service road

to the emergency pumping plant. Today the discharges are more

frequent, more intense and more offensive.

If you happen to be on the platform area of the emergency pumping plant when a discharge occurs you will see the effluent skirt

two feet high out of the bolt holes in the metal plates. I have seen

the discharge shoot across the Potomac River to the Virginia shoreline. It depends on the river stage how far it will shoot but the

muddy sediment persists until Key Bridge.

This year, beginning in February, heavy dumping occurred frequently well into June, more than any previous year that I have

observed. It would be a miracle if any fish spawn survived the

spring in the area of the Little Falls. Sediment can be very harmful

to fish, especially when it interferes with spawning, and these discharges occur in the spawning grounds of rockfish, shad, perch and

many other fish. The endangered shortnose sturgeon is known to

be in the Potomac and Little Falls is the only suitable spawning

grounds in the river.

I have seen sediment that was six to eight inches deep after a

discharge. On the D.C. side where the river is slower and shallower

I have seen sediment several inches deep all the way to Chain

Bridge. The sediment covers the river bottom until it is flushed

away by heavy rains or high water. The sediment could easily

smother any eggs or larva that are in the area.

Normally the discharge is clay-colored, foamy and heavy with

sediment. Some of the discharges this year were soupy, dark gray

in color and had the odor of an open septic tank. The stench from

a discharge that occurred May 22 was so powerful that it could be

smelled a mile downriver from the point of discharge. Fishermen,

including myself, often refer to Little Falls Branch as ‘‘stinky

creek’’ because of the chemical smell from the discharges. Some

fishermen have told me that they were almost overcome by the

chlorine fumes and they had to leave the area. Aquatic insects and

plants present in other creeks nearby are not found in Little Falls

Branch below the discharges. From the point where the discharges

come from outfall 5, Little Falls Branch is devoid of life. I have

seen dead eels, bluegills, perch, shad and even a turtle that apparently entered the creek between discharges.

At times a root beer-colored foam covers the river from shore to

shore and that was that one picture that you had up there and the

26

one little bit of green was the green paddle from the rowboat. This

foam is not naturally occurring.

In summary, I wish to make three points that I believe are beyond dispute. The first is that the discharges of this size affect fish

behavior in a critical spawning and nursery area. I am uncertain

whether the fish leave, whether they go deep, whether they suspend, but there is no doubt that the sediment has an effects on the

behavior of the fish feeding, migrating and spawning. Even fisheating birds leave during a discharge. I know from 50 years of fishing in this area that spawning conditions for all species of fish has

never been worse.

The second is that these discharges cause mortality to fish and

wildlife and destroy habitat in the park and in the Potomac. A few

years ago I accompanied a Fish and Wildlife Service biologist on a

survey of the river bottom affected by the discharges. He found

only two specimens of submerged aquatic vegetation at five snorkeling locations. These locations were downstream from the outflow.

The third point is that these discharges are highly offensive.

They have a revolting smell. They look horrible. They despoil a

prime outdoor recreation area used by joggers, paddlers and fishermen. These discharges should not be permitted anywhere and certainly not in a national park.

Thank you, Mr. Chairman, for permitting me to testify. I would

be happy to answer any questions.

[The prepared statement of Mr. Leisch follows:]

Statement of Gordon Leisch, Field Biologist, Formerly of the U.S.

Department of the Interior, Office of Environmental Policy

My name is Gordon Leisch. I have a bachelor’s degree in biology and a master’s degree in biology and ecology. From 1970 through 1974 I was employed by the Army

Corps of Engineers writing environmental impact statements, serving as a field biologist and writing the environmental protection section for civil works projects. From

1974 through my retirement in 1997 I was employed by the Department of Interior

in the Office of Environmental Policy.

I have been an avid fisherman of the Potomac for all my life, having grown up

near Little Falls and fishing regularly there from childhood through today. I am on

the river almost every day of the year.

I have witnessed the effects the discharges from the Washington Aqueduct are

having on the Potomac River and can tell you from careful, direct observation that

they are causing serious harm. These discharges are flushed through the C&O

Canal National Historic Park into the Potomac River, an American Heritage River.

As soon as a discharge hits the main body of water, all feeding activity ceases. All

biting ceases. You can no longer see fish feeding or chasing bait. You see fish avoiding the sediment plume. Birds such as the great blue heron and cormorants leave

the area. Above the outflow, fish activity goes on, so there is no doubt the dramatic

change in fish behavior is caused by the discharges.

I can recall that during my high school days in the early 1950’s there were infrequent discharges from the Dalecarlia Reservoir into Little Falls Branch and the old

spillway, which is now the service road to the emergency pumping plant. Today, the

discharges are more frequent, more intense and more offensive. If you happen to

be on the platform area of the Emergency Pumping Plant when a discharge occurs

you will see the effluent squirt two feet high out of the bolt holes in the metal

plates. I have seen the discharge shoot across the Potomac River to the Virginia

shore. Depending on river stages, muddy sediment from the discharge can persist

past Key Bridge.

This year, beginning in February, heavy dumping occurred frequently well into

June, more than any previous year that I have observed. It would be a miracle if

any fish spawn survived this spring in the vicinity of Little Falls. Sediment can be

very harmful to fish, especially when it interferes with spawning and these discharges occur in the spawning grounds of rockfish, shad, perch and other fish. The

27

endangered shortnose sturgeon is known to be in the Potomac and Little Falls is

its only suitable spawning grounds in the river.

I have seen sediment that was 6 to 8 inches deep after a discharge. On the DC

side where the river is slower and shallower, I have seen sediment several inches

deep all the way to Chain Bridge. The sediment covers the river bottom until it is

flushed away by heavy rains or high water. The sediment could easily smother any

eggs or larval fish that are present.

Normally the discharge is clay colored, foamy and heavy with sediment. Some of

the discharges this year were soupy, dark gray in color and had the odor of an open

septic tank. The stench from a discharge that occurred on May 22 was so powerful

that it could be smelled a mile down river from the point of discharge.

Fishermen, including myself, often refer to Little Falls Branch that flows through

the C&O Canal National Park as ‘‘stinky creek’’ because of the chemical smell from

the discharges. Some have told me that they were almost overcome by the chlorine

fumes and felt they had to flee for their lives. Aquatic insects and plants present

in other creeks nearby are not found in Little Falls Branch after the discharges.

From the point where discharges from outfall 5 enter it, Little Falls Branch is devoid of life. I have seen dead eels, bluegills, perch, shad and even a dead turtle in

the creek. They apparently entered the creek between discharges.

At times a root beer colored foam from the discharges covers the river almost

bank to bank. I keep a log of river conditions. The log shows that the foam corresponds almost exactly with the discharges. I took some photographs of the foam

and brought enlargements with me to show this Committee. To give you a sense

of perspective on how thick the foam is, I can tell you that the green object in the

foreground is an oar. The pictures were taken near Fletcher’s Boat House that is

in the National Park. You can see for yourselves that this is not naturally occurring

foam.

In summary I wish to make three points that I believe are beyond dispute.

The first is that discharges of this size and nature affect fish behavior in a critical

spawning and nursery area. I am uncertain whether the fish leave or go deep or

suspend, but there is no doubt that their essential behavior patterns of feeding, migrating and spawning are interrupted. Even fish eating birds leave during a discharge. I know from fifty years of fishing the area that spawning conditions for all

species have never been worse.

The second is that these discharges cause mortality to fish and wildlife and destroy habitat in the Park and in the Potomac. A few years ago I accompanied a Fish

and Wildlife Service biologist on a survey of a section of the river bottom affected

by the discharges. He found only two specimens of submerged aquatic vegetation at

the five snorkeling locations he sampled downstream from the outfalls.

The third point is that these discharges are highly offensive. They have a revolting smell. They look horrible. They despoil a prime outdoor recreation spot used by

joggers, paddlers, and fishermen. These discharges should not be permitted anywhere, and certainly not in a national park.

Mr. RADANOVICH. Thank you, Mr. Leisch.

Just on a programmatic discussion here, I think I am going to

give—I have a lot of questions. I have a lot of questions. Dr. Hogarth, we are going to try to accommodate you and your schedule.

I hope you will work with ours, too, just to make sure that we do

not have to reconvene hearings and do this all over again. At the

same time I am sure other members have questions, as well, so I

am going to go with 5 minutes and then each member go with 5

minutes of questions and then we will just start it all over again

until all the questions are asked and all the questions are answered.

So with that, I think what I will do is Mr. Parsons, if you can

help clarify what seems to be a contradiction. You had mentioned

that nothing is discharged onto park property, although the Army

Corps states that they do discharge onto park property. There are

apparently 75 feet of stream or drainage between the pipe outlet

and the actual shore of the river that is actually C&O property,

28

that it does not discharge—it is not underground apparently, under

the C&O park. Can you clarify this for me?

Mr. PARSONS. I did not mean to imply that it did not discharge

onto park land. That is, there is a pipe—well, there are seven different circumstances but in any event—

Mr. RADANOVICH. Because there are seven different outlets?

Mr. PARSONS. Yes. One, for instance, the one we spent the most

time talking about here, comes down Little Falls Branch, which

passes through the park. There is no doubt about it. It is not an

engineering work; it is a natural stream that comes through there

or creek. But in the case of the pipes that discharge, they are discharging into a runnel or trench as some have called it that is

about 75 feet from the Potomac.

Mr. RADANOVICH. So it does actually discharge into the park?

Mr. PARSONS. Yes, it does.

Mr. RADANOVICH. Can you clarify something for me, too? It was

my understanding that the actual bottom of the Potomac River, is

that national park property? I know C&O may not go into there

but isn’t that National Park Service jurisdiction that goes into the

Potomac River itself?

Mr. PARSONS. In the District of Columbia only. I guess I should

clarify that. The State of Maryland owns the bed of the river. Unlike most rivers, it is not divided down the thread of the stream;

it is to the highwater mark in Virginia. So when the District of Columbia was established we took from the State of Maryland that

jurisdiction, not only the District of Columbia itself but within its

boundaries the bottom of the Potomac River.

Now it is not included in the National Park System. We manage

it as a miscellaneous property, the Interior Department. In other

words, it has never been designated as a unit of the National Park

System, the bed of the river, even though many of the shoreline

properties are under our jurisdiction.

Mr. RADANOVICH. Do you implement any programs on the Potomac River because of that jurisdiction you have over it or is it basically ignored by the National Park Service?

Mr. PARSONS. What we generally do is issue permits for construction activities, such as the Woodrow Wilson Bridge, the various

bridges that cross the Potomac and Anacostia Rivers. The Anacostia is included in this, as well.

Mr. RADANOVICH. What is the relationship with the National

Park Service and the implementation of the Endangered Species

Act? Do you have a concern about that or if, for example, in Yosemite or Yellowstone or somewhere where there was a threatened endangered species would the National Park Service have any concern about that or would they implement programs to guarantee

the protection of that endangered species?

Mr. PARSONS. We are certainly protective of endangered species

within the boundaries of a national park, absolutely.

Mr. RADANOVICH. Dr. Hogarth, I want to begin some questions

for you. One, if you can, explain to me in chronological order what

consultation actually NMFS has conducted with the National Park

Service, EPA and the Army Corps of Engineers since the listing of

the sturgeon, which was in 1967.

29

Dr. HOGARTH. I do not know if I will go back as far as you want.

I will check when I go back to the office to make sure, but my understanding is we started basically in about 1998, as far back as

I am familiar with now, that we had consultations with EPA on

discharges. Then in January 2000 we signed a memorandum of

agreement with the EPA to improve coordination of the Clean

Water Act and ESA where we are looking at 45 pollutants that

they have; we are looking at those as to how they are affecting the

aquatic life.

But now we are waiting for the EPA pollutant report and we will

continue our consultation based on the report that she mentioned

was completed in October. We will review that and, if necessary,

we will do a ‘‘formal’’ consultation and a biological opinion. So far,

there has not been a formal consultation on this particular action

that I am aware of. I just started a few months ago so I will go

back and check.

Mr. RADANOVICH. Can you tell me, it seems to me that there was

some disagreement about how far the shortnose sturgeon was appearing up on the Potomac River. Some say a little further downstream and no farther than where the Wilson Bridge is being constructed.

Are you quite certain and can you say today that the shortnose

sturgeon is obviously up into the area of the Potomac where the

discharges are occurring and that also according to biological surveys, the best spawning ground is upstream as far as you can go

on the Potomac until you hit some type of dam structure or barrier,

and that is exactly where the dumping is occurring? Can you concur with that?

Dr. HOGARTH. We feel very confident that at Little Falls, for example, that would be a good habitat for spawning (based on indications in other rivers throughout the system). We have not documented spawning taking place at Little Falls. Shortnose sturgeon

go from Canada to Florida, basically. In looking at habitat in other

areas you would compare with this, you would think it would be

a good spawning area.

As far as fish are concerned, shortnose sturgeon themselves,

most of the sampling or most of the documentation has been below

the aqueduct, 55 miles or something below it. There are some indications that there are a few fish in the general vicinity.

The discharge, as I think one of the tables stated, a discharge

would potentially drive the fish back downriver, so it depends on

how the sampling is taking place and that I am not sure of. We

did develop some protocols in the last couple of years to be used

for shortnose sturgeon sampling so that we would be consistent

throughout its range, since it is endangered. It does seem to be recovering much better in the northern range than it is in the southern range.

Mr. RADANOVICH. Southern range of what?

Dr. HOGARTH. Of the species, the shortnose. It seems to be recovering much better in the Hudson and the Northern Delaware up

than it is from the Chesapeake Bay south. The recovery rate seems

to be much better.

Mr. RADANOVICH. I am out of time but did want to ask one more

quick question if I can before I pass on to other folks.

30

When an endangered species is discovered, according to law, formal consultation needs to occur right then.

Dr. HOGARTH. Right.

Mr. RADANOVICH. So you are saying that there has been no consultation?

Dr. HOGARTH. Basically what we did when this was listed was

that it appeared that the main problem with the shortnose sturgeon came from recreational and commercial fishing, so we put a

prohibition on any fishing for shortnose sturgeon. It is illegal to

take any shortnose sturgeon or Atlantic sturgeon. It appeared to us

at the time that was the primary problem with sturgeon, was the

tremendous effort for the species because it had a lot of value for

caviar and this type of thing, that there was tremendous fishing

pressure and we prohibited any fishing pressure.

Mr. RADANOVICH. All right, thank you very much.

Ms. Christensen?

Mrs. CHRISTENSEN. Thank you, Mr. Chairman.

I guess I would direct my first question to Mr. Parsons from the

Park Service. Just clarify for me what authority the Park Service

has to control anything that is happening in the aqueduct.

Mr. PARSONS. Excuse me. Happening where?

Mrs. CHRISTENSEN. Authority, does the Park Service have any

authority over the aqueduct in any way?

Mr. PARSONS. Oh, not that I am aware of, no.

Mrs. CHRISTENSEN. When the C&O Park was being established

were there any concerns such as this raised at that time, the time

of the establishment of the park?

Mr. PARSONS. Not that would appear in any of the congressional

records. There certainly was a concern by the State of Maryland

that we would in some way prohibit taking of water from the Potomac and others who had permits across the C&O Canal, which is

185 miles long, and that is why the law provided that any existing

pipelines or rights would be honored by the Park Service. We could

not shut off their water.

Mrs. CHRISTENSEN. Right.

Dr. Hogarth, you said something in response to the last question

from the Chairman about the difference in the recovery periods in

the Chesapeake and the Hudson, and so forth, I guess for the sturgeon. Would the Section 7 consultation that is now going on, would

that answer some of those questions that you might have? Or

might that clarify what the difference is?

Dr. HOGARTH. The results of the studies could give us an indication of things that were impacting in the Chesapeake Bay or particularly the Potomac River, why the population is not as robust or

not increasing to the extent you would expect it based on other

populations.

Mrs. CHRISTENSEN. And that consultation will determine where

we go from here in terms of setting the regulations for the discharges, et cetera, Miss Gleason?

Ms. GLEASON. Yes, it will.

Mrs. CHRISTENSEN. Mr. Gordon, I understand that there is litigation going on at the present time over this?

Mr. GORDON. Yes, ma’am.

31

Mrs. CHRISTENSEN. Who are the litigants? What stage is that

right now?

Mr. GORDON. As regards the Endangered Species Act, we filed

the notice of intent in October, last October over this issue and we

are now in the process of discussing discovery. We have also filed

a notice of intent regarding Clean Water Act violations.

Mrs. CHRISTENSEN. So the intent of the legislation is—what are

you seeking? What would you be seeking?

Mr. GORDON. That the law be followed, that the discharges that

harm shortnose sturgeon or their habitat be considered in terms of

the jeopardy consultation process, that biological assessments, biological opinions be done. There is a whole host of things. There are

numerous charges we have made in our notice of intent and our

complaint that has been filed in U.S. District Court.

Mrs. CHRISTENSEN. Maybe I have not been serving on the Committee long enough but as I listen to the testimony from EPA,

Army Corps of Engineers, National Marine Fisheries and the Park

Service—well, the Park Service really does not have too much to

do with this but it seems to me that this was a really good example

of laws being followed and agencies working in collaboration and

there is a big gap between what the agencies said and what Mr.

Gordon said.

I saw Miss Gleason taking some notes. Let me give you an opportunity to maybe respond to some of the issues that were raised in

the other testimony. It seemed to me that the agencies were following the law and that there was a lot of coordination between the

agencies in Section 7 but yet when I listen to the other testimony

there seemed to be a real disconnect. Is there something that you

would want to respond to that?

Ms. GLEASON. I would just like to say that we were following the

law and continue to follow the law. We have been actively engaged

for several years with the National Marine Fisheries and Fish and

Wildlife on a number of permits, water quality standards within

the District of Columbia, so they are no strangers to us and we are

very involved related with the shortnose sturgeon and other endangered species in the District and have actively engaged and discussed—in fact, we have permit language in our permits in the District of Columbia that we have issued over the last couple of years

that address their needs and concerns and actually require the permittee to submit annual reports, including data on discharges to

the services to make sure that everyone is aware of what is going

on and being discharged in these water bodies in the District.

Mrs. CHRISTENSEN. If I have time for maybe at least one more

question?

Mr. RADANOVICH. Sure.

Mrs. CHRISTENSEN. Then I will probably come back again.

Mr. Leisch, since you fish in the area frequently, after the discharge goes into the river and the fish move away, do they come

back?

Mr. LEISCH. Yes, they will return, probably the next day or the

day after. As soon as they start dumping all fishing stops. You may

as well pack your bag and go somewhere else.

Mrs. CHRISTENSEN. And you have been fishing there for a long

time?

32

Mr. LEISCH. Over 50 years.

Mrs. CHRISTENSEN. Once the discharge has moved away and the

fish come back, the fishing is as good as it has always been?

Mr. LEISCH. Actually, the Potomac River has sensational fishing

almost everywhere but in that section. You can almost call that the

dead zone.

Mrs. CHRISTENSEN. I think my time is up. I will perhaps have

other questions.

Mr. RADANOVICH. Mr. Kildee?

Mr. KILDEE. Thank you, Mr. Chairman.

I address my questions to the colonel. Colonel, my son is a captain in the Army, a Ranger, and he has worked with the Corps of

Engineers both in Korea and I think in Bosnia, doing some things

over there. So I have great respect for the Corps, including back

home.

Let me ask you this question. What alternatives have you looked

at for disposal? What do other water suppliers do to dispose of the

sludge? I ask that because we are so concerned about the Chesapeake. I am so concerned. I have a home—of course I live in Michigan but I have a home out in McLean, Virginia, also, and for about

3 years I have had some solvents and some paints that I have

stored in my garage because I am back in Michigan every weekend

but my son, the captain, by the way, was home and I had him Saturday take that small amount, not even a truckload, not even one

truckload, out to the Fairfax County hazardous disposal site because I was so concerned to make sure it did not get into the Potomac and into the Chesapeake.

Have you considered alternatives and what do other water companies do, water suppliers do with the sludge?

Col. FIALA. Sir, first off I hope your son is enjoying the Army and

finds it as exciting as I have for 22 years.

Mr. KILDEE. He finds it very exciting. The two sons are captains,

by the way.

Col. FIALA. That is great, sir. It really is.

In our by-law process to go through the process of renewing our

permit we have looked at other alternatives and there are at least

two that my staff has told me that are feasible.

Now I remind the Committee that our operating costs and our

capital improvement costs come from our customers. Just because

it is operated by the Corps of Engineers, the money does not come

from the Corps of Engineers budget.

So two alternatives that we have looked at is the construction

and operation of a dewatering facility. This dewatering facility

would be built on our Dalecarlia area, our Dalecarlia plant area.

The cost we estimate at $70 million with a $4.5 million annual operating cost.

Now I do not want to get into the debate of the environmental

impacts of that but we estimate 15 truckloads a day of the material

leaving the plant that would have to transit out of the plant operation down there at Dalecarlia. We also have then the issue of

what to do with this material once we cart it out from the plant.

In other words, then you have to identify a disposal area, probably

a landfill someplace.

33

The second alternative is to move it down to Blue Plains to be

processed down there. Now those of you that know the Washington,

D.C. area know that Blue Plains is pretty close to their maximum

capacity right now with the growth of the Washington, D.C. area,

so that creates other environmental problems and other operating

problems for Blue Plains.

We are receptive to those alternatives. They come at a cost.

There is an environmental impact to those alternatives and the

process we are going through right now, in the permitting process

we are going through right now, by law, requires us to look at all

that.

Mr. KILDEE. I would hope so. I would hope that you would look

at really environmentally sound alternatives. I think having been

down here in this area with my second home for 25 years, I am

really concerned about the Potomac and the Chesapeake and I

think government has to set the example. I think it is very important. We ask the private sector; we ask even homeowners to be

very careful and I am very cautious on that. I think that government should set the example. I think we pass the laws and those

who are the government should really even be ahead of the curve,

maybe showing the latest state-of-the-art of how to protect our environment and dispose of those things that can be harmful to the

environment. So I would commend you that you pursue alternatives, Colonel.

Thank you very much.

Mr. RADANOVICH. Ms. McCollum.

Ms. MCCOLLUM. Thank you, Mr. Chairman.

To the EPA, chlorine discharges are four to five times higher

than the state standard. Is that concerning to you?

Ms. GLEASON. It is concerning to us. Chlorine typically volatilizing. It does not stay in the water. There is data that shows that

the water that is discharged meets standards in the District of Columbia.

Ms. MCCOLLUM. It meets standards but—

Ms. GLEASON. Water quality standards.

Ms. MCCOLLUM. Water quality standards but yet there is documentation and you are aware of the fact that four to five times the

state level of chlorine is routinely discharged.

Ms. GLEASON. I know some of the issues related to that are

upstream in Maryland. I know that Maryland Department of

Environment, actually, and the Corps of Engineers are talking

about that and sharing information and data.

Ms. MCCOLLUM. So we know a state law is being broken.

I ask the Park Service, sir, even though you do not have any jurisdiction, and this is my first term on the Resources Committee,

I have noticed from reading some of the park plans that one of the

things that the park, when they are going through their redevelopment or any changes that they are making at all, they talk about

the appearance, preserving appearance, having the visitor have

something that is pleasing to the eye.

Looking at these photographs and hearing the smell described,

do you think that the Park Service is being well served by the appearance of this particular part of the stream, river?

34

Mr. PARSONS. That is a very difficult, good question. Many of

these discharges are used so infrequently, annually, for instance,

that there is little residue or impact once the discharge has occurred.

So visitors—I call your attention to the culvert over there with

the redbud in the picture. That is Little Falls Branch. The people

walking along the canal then walk along that piped railing and

during a discharge I am sure that it is not—I have never seen one

myself—it is not something aesthetically that the visitors would

enjoy, to get to your point.

So we have never addressed that on the C&O Canal as to the

impact on the visitors of the intermittent discharges that occur in

this park.

Ms. MCCOLLUM. But if you were to be putting together a reupdate of the visitors’ comments and all, that would be something

that—I would assume that we would hear a lot of testimony about

that if you were doing a visitors park reapplication permit?

Mr. PARSONS. Yes.

Ms. MCCOLLUM. To the Army Corps, why do you dump at night?

Col. FIALA. There are a couple of reasons for that. Number one,

we are not hiding anything. Despite what the newspaper says—

Ms. MCCOLLUM. I have not read the newspaper. I am just asking

a question.

Col. FIALA. There is that accusation in the newspapers.

We dump or we discharge the sediment based on the highwater

flows in the Potomac. Sometimes that is at night. Sometimes that

is during the day. It is a 12- to 16-hour operation. We typically like

to start that operation at night so that when daybreak comes it is

a little bit easier to finish cleaning out the basins. I put our government employees down into the basins to clean them out and there

are some safety issues there. I would rather be doing that final

clean-up during the day than at night.

In addition, because of how quickly the discharge dissipates in

the Potomac River, if we are able to dump at night, by the time

daybreak comes dissipation is away and we are impacting very little the fishing that goes on out there.

So that is why we do that. Sometimes we will start the discharge

during the day, sometimes in the evening hours.

Ms. MCCOLLUM. Mr. Chairman, just a quick follow-up.

So you admit that it impacts the fishing. Those were your words.

So you are less likely to impact fishing and maybe a visitor’s

enjoyment by discharging at night. So in other words, there is a

problem with fishing. There is a problem with, if I am a visitor who

is visiting that area and I hit it during a discharge, I am more likely if you discharge during the night than during the day to have

a better aesthetic adventure at the park, correct?

Col. FIALA. Let me clarify when I say we impact fishing. You

heard several testimonies here that talk about the fish that are in

and around these areas. Our discharge temporarily provides a very

minor impact to the fishing. And our studies, our water quality

studies, both in the ’93 study and the study we just finished up

here in October lay that out scientifically. So it is temporary and

it is very minor in nature.

35

Ms. MCCOLLUM. Mr. Chairman, but if I am fishing that day and

I have a brown root beer foam, I am not very likely to put my boat

in the water. Thank you, Mr. Chairman.

Mr. RADANOVICH. Thank you, Ms. McCollum.

Dr. Hogarth, I have a question regarding the sturgeon and I

want to get your opinion on this. Do you think that sediment

dumping is negatively affecting the recovery of the sturgeon? I

think in your previous testimony you had mentioned that it is done

in the presence and that sturgeon are still present but we are talking about a listed endangered species where it is NMFS’ responsibility to make sure that they recover. Do you think the sediment

dumping is affecting the recovery of the endangered sturgeon?

Dr. HOGARTH. But I do not think we have enough data to support

or refute that. We do think that if they are in the area, they would

probably be moved out of that area during the discharge time. They

would leave the area.

Mr. RADANOVICH. Do you realize how that does not incredibly fly

anywhere else in the United States of America, that statement?

When you are charged with habitat protection of the endangered

species, you can say well, the fish disappear when you dump into

their habitat? It is your job to make sure that the recovery of the

species is guaranteed and anything that affects the recovery of that

species has to be stopped at all cost. That is the way the law reads.

Dr. HOGARTH. That is correct.

Mr. RADANOVICH. So you cannot say the fish are okay because

when we dump they leave. You are violating the law when you talk

like that.

Dr. HOGARTH. What we have said is we have not been able to

document fish in the area of the discharge, since the evidence in

the early 1800’s or late 1800’s, but since 1996 we have seen some

in the Potomac River but not in the vicinity of the discharge.

Mr. RADANOVICH. So the species was listed in 1967 and in 1983

you were given a permit to dump into the river. At that time formal consultation is required. To my knowledge there has been absolutely no formal consultation on the species since 1983. Why is

that? I mean these are answers that you should have had 20 years

ago.

Dr. HOGARTH. You have a good point. We are doing the consultation at this time. That is why we asked for the studies. Based on

this consultation, we will decide if we believe that the discharge is

impacting the sturgeon. Then we will take appropriate action and

a biological opinion, if we feel we have to do a formal consultation

based on the data that we get from the studies that were just undertaken.

Mr. RADANOVICH. When might you have that data?

Dr. HOGARTH. The report, they finished in October. It was submitted to us in the last few days. We have not received the report

yet from EPA.

Mr. RADANOVICH. Thank you.

Mrs. Gleason, in a letter to the EPA expressing concerns about

ending the discharges of sludge from the facility, the Corps officially states that the material would have to be picked up at

Dalecarlia and trucked to any suitable site we might obtain. Due

to local restrictions on various roadways in the area, these trucks

36

would have to go south on leaving the plant, requiring them to

travel through high-density, ‘‘high-value areas’’ of D.C.

There is a real concern about trucking sediments through a residential community, in my opinion, that has high value as opposed

to low income. Is it not acceptable Corps practice to alter these

policies based on the affluence of the area?

Ms. GLEASON. Let me step back for a minute. We were in the

process during the time that those letters were written, probably

in ’96, ’97, ’98, of making a determination and trying to find out

if the sediment is charged with having an impact on the river, so

it was premature to even get into any debates about trucking.

There were issues that the residents were raising relative to trucks

because they were concerned. We knew the issues of the fishermen.

We knew the issues of the services. We were trying to sort out

through scientific data, through these studies, whether indeed the

sediments could continue to be discharged the way they were or

discharged in a different manner, whether they were a problem or

not.

Mr. RADANOVICH. So would it have been done in a different manner had this been a low-income neighborhood as opposed to a highincome neighborhood? Why was there even a mention of a highvalue neighborhood?

Ms. GLEASON. People write letters with all sorts of things in it

to us.

Mr. RADANOVICH. Is it EPA’s practice to discharge in a different

manner in a low-income neighborhood than a high-income neighborhood?

Ms. GLEASON. When I mentioned different manner I meant if

there were any ways that the current discharge could be, instead

of in a certain time frame, over a longer period of time, whether

that would help the recovery that NMFS was speaking about,

whether Fish and Wildlife were interested certainly in enhancing

the Potomac River.

Sediments in the Potomac are an issue for the entire Potomac.

There are sediments in the river coming from the Maryland portions of the Potomac, from West Virginia. There are deforestation

issues. We are trying to take a full watershed approach and deal

with the entire sediment issue.

The Chesapeake Bay is definitely impacted by sediments. The

aqueduct pulls sediments into its plant from the Potomac. They do

not create these sediments. They do add alum; we know that. We

have done studies that were just completed that show that there

is no impact, as far as we can determine scientifically at this point,

of the alum in the river. We are trying to take a large watershed

approach and draw in other groups to solve the overall sediment

problem in the Potomac.

Mr. RADANOVICH. I am out of time but if I could ask—

Mrs. CHRISTENSEN. Of course, Mr. Chairman.

Mr. RADANOVICH. Thank you, Ms. Christensen.

A water quality study in the vicinity of the Washington Aqueduct

that was prepared by the Army Corps of Engineers states that the

primary risk from deposition of suspended sediment on eggs and

larvae of the endangered species would greatly affect its survival.

So it is the deposition of suspended particles.

37

Whether it is perfectly legal to draw water out of a dirty river

and clean it up and put the dirt back into the river, I do not argue

with that, but this practice is in direct violation of the Endangered

Species Act and recover of an endangered species that you have

known is there since 1967. That is the problem that I have and I

think that you have known about this. Apparently it is in the

study, the study has been released, and there has unfortunately

been no enforcement of that act.

With that, I will switch to Mrs. Christensen.

Mrs. CHRISTENSEN. I probably just have a couple of questions. I

guess to Colonel Fiala, what occasioned the Army Corps to start

looking at other alternatives? Why did you start pursuing other alternatives?

Col. FIALA. Why did we? We are always working at the aqueduct

to figure out how to provide better service in a cost-effective manner and in line with our permits that we have to operate. We have,

as I testified before, we have produced two different studies on

water quality and as we work toward a new permit or a draft permit that the EPA will issue, that will drive the debate on other alternatives. That debate will be open, it will be open to the public,

and it will be in accordance with the law. It will be a process that

we will consult with the other Federal agencies and any other

stakeholders and players in the region.

Mrs. CHRISTENSEN. You indicated that it would be about $4.5

million operating costs annually. What is the operating cost of

what you are doing now?

Col. FIALA. Ma’am, that is $27 million right now. $27 million a

year is our operating budget annually.

Mrs. CHRISTENSEN. I see. Well, I guess the other question I

would ask is how would you pay for a new facility if that was the

alternative, the $70 million facility, if that was the alternative that

you chose?

Col. FIALA. We have to go to our customers and work an agreement to create a capital fund, like we are doing right now. We are

currently upgrading certain parts of the aqueduct operation right

now through a capital fund. So we would go to our customers and

work their rates or work some other financial arrangement to construct the dewatering plant.

Mrs. CHRISTENSEN. I guess my last question would be to Miss

Gleason, Dr. Hogarth and Mr. Parsons. Do you consider the

present arrangement workable or would you prefer to see an alternative put in place? Is this workable? Do you consider what is

being done now the optimal way of dealing with the situation or

would you yourselves recommend that we look for an alternative

way?

Mr. PARSONS. I am not sure I am qualified to answer that. On

the one hand it is an aesthetic issue and on the second, it is a cost

factor.

There is one point—I would like to take this opportunity just to

clarify one thing. There has been some testimony today that the

discharge smells like sewage and I will fess up to another problem

on the C&O Canal. We have a 96-inch sewer line that comes from

Dulles Airport. It was put into the canal in the 1960’s and has

vents in this area. I am certain that if there is any concern about

38

that, that is its source, certainly not the discharge that comes from

the Dalecarlia Reservoir.

Dr. HOGARTH. Well, just to clarify one thing, we have only seen

four shortnose sturgeon in the Potomac River between 1996 and

the year 2000. We have seen others in the Chesapeake Bay

throughout its range. We are not sure, due to the timing of when

the research took place. We issued about 41 research and enhancement permits since 1992 to look at shortnose sturgeon enhancement activities up and down the coast. We will have to look at the

data that the EPA sends us and determine if it is having an impact. Then what we would do is in the biological opinion we give,

what is called reasonable prudent alternatives. We would talk

about not having the discharge during certain times when the fish

migrate into the river to make sure it is not, or if the eggs are in

the river, to make sure of that.

So we would look at it from the standpoint of the impact on the

various life stages and when they migrate in. We would have to

look at that data. But under the ESA we have no choice but to

make a determination on what is best for the shortnose sturgeon

and that is what we will do when we review this data and do the

biological opinion.

Mrs. CHRISTENSEN. Miss Gleason?

Ms. GLEASON. We are at a point now, since the study has just

been completed, that we are looking for various options. We are developing them to address the concerns that we are aware of, the

concerns that the study points to, as well as the concerns that the

other agencies and the public have. So we are drafting a permit

and it will be out for public comment by the end of this calendar

year.

Mrs. CHRISTENSEN. If I could just ask one more question, it

should be a real short answer.

Mr. RADANOVICH. Sure.

Mrs. CHRISTENSEN. You in your testimony said and the Chairman raised the issue again of the sediment and the possibility of

smothering the spawning of the fish. Have you looked at that sediment and if you have, is the make-up of the sediment suggestive

that it is just coming from the discharge or is it a mix?

Ms. GLEASON. Through this recently completed study there was

a lot of modeling done that looked at the river natural conditions,

as well as the discharge, where the solids go, how it migrates, what

is deposited and what size, where. So we have probably the best

data that we have ever had in the Potomac of how the solids in the

river naturally move and how they move during these discharge periods. So I think we will have some really good information to

evaluate our options.

Mrs. CHRISTENSEN. So you do not know now but you will know

based on the studies that you are doing and the information that

you have

Ms. GLEASON. The studies are completed. We are going through

them right now. We are doing some overlays with submerged

aquatic vegetation and seeing if there is any line-up with deposition patterns of the solids in the river.

Mrs. CHRISTENSEN. Thank you, Mr. Chairman. It has been a very

informative hearing. I am still not sure. We do not have much

39

jurisdiction over any of the agencies here but it has been an informative hearing.

Mr. RADANOVICH. Thank you, Ms. Christensen.

Dr. Hogarth, I am aware that you are going to need to take off

and just have one more question. And I want to thank you, even

though the testimony is not some of the most pleasant stuff, I

think.

In 1997 there was a flood in California and a levee broke and

killed three people. What makes it, I think, relevant to this hearing

is the fact that it happened to be the habitat of the elderberry longhorn beetle. The habitat on the levee was that. So they had to go

through NMFS, go through a 6-year process to get permission to

go and repair a weakened levee, even though they knew it was

weakened for 6 years, and apparently did not get it in time for the

flood. The flood happened and the levee broke and three people

died. It was the habitat of the elderberry longhorn beetle. There

was no evidence that it was present.

In the Klamath River Basin, as you know, the water is being

shut off to a whole valley of farmers up there, 1,200 of them because of the presence of some sucker fish—I am not even sure what

the biological name is—not that it is present but it is the habitat

of one that is known to be an endangered species.

Why is that not the case here? You know that there is an endangered shortnose sturgeon on the Potomac. You know that that is

the habitat of that and may very well be the ideal and probably

only breeding ground. Why is it that you can shut—that NMFS or

the U.S. government can allow these things to happen—people die,

farmers go bankrupt—and yet when it happens here, what is your

explanation for why that has not happened here?

Dr. HOGARTH. I think here several things—the different behavior

of different species. The sucker is more of a stationary animal. It

stays in the area. It does not migrate great distances. Shortnose

sturgeon, as we said, is an anadromous species that will spend a

great deal of its life in the lower reaches, in the ocean, in the saltwater and goes up to freshwater. It will go great distances, 130

miles, to spawn. That is why we lack the information to see the

distance it is migrating up the river, so what impact it would have.

Is it spawning in the Potomac River, based on four fish? We do

not have the information that we have on the others. We have a

lot better information, for example, on salmon on the West Coast,

their patterns and all, than we have here on the Potomac.

Now the Potomac has improved tremendously in the last 20 or

30 years. I worked on it, in fact, back in the 1970’s when I was in

graduate school. We found virtually nothing in the Potomac except

white perch and there has been a great clean-up campaign.

I am not saying that we do not have a problem with shortnose.

I am saying we have to go through this consultation. We stopped

what we thought were the activities that were impacting sturgeon.

It has worked, it seems, everywhere except in the Potomac River

and we do not have a lot of information to say what level was the

population in the Potomac to begin with. Now we have to focus in

on chlorine in the discharge to see, since we are recovering it in

other areas, if that may be something that is happening here. That

40

is why we will use the consultation process very carefully to look

at the Potomac River, the impacts.

Mr. RADANOVICH. But you know that that area of the Potomac

is the habitat of a listed species, the endangered shortnose sturgeon, correct? You know that that is the habitat.

Dr. HOGARTH. Yes, Little Falls, we feel like is the similar habitat

of the shortnose sturgeon that is in other rivers, yes, sir.

Mr. RADANOVICH. And the law reads that if you know that that

is the habitat of a shortnose sturgeon, you are obligated to protect

that habitat at any cost. That is the way the law reads.

Dr. HOGARTH. Yes, we have said similar habitat but we do not

have any data that shows the presence of it in that area.

Mr. RADANOVICH. You do not need data. You have the presence

of the endangered species in that area.

Dr. HOGARTH. That is correct.

Mr. RADANOVICH. You know that is the habitat and you have selectively enforced the Endangered Species Act. At least in California you have done it to the extreme. Here you have completely

ignored the law for almost 30 years, probably more.

Thank you for coming. I do appreciate you being here. If you

need to go, I wish the others would stay because I still want to— Dr. HOGARTH. In closing, I do appreciate it because I do have another hearing at CEQ. As I said, I just started in this job in this

administration about 2 months ago. We will look at this very carefully, as we do all consultations. There is no selective enforcement

or implementation of ESA.

Mr. RADANOVICH. Oh, there is. There is, sir.

Dr. HOGARTH. I try not to.

Mr. RADANOVICH. That law, I think the evidence clearly shows it

today. But thank you very much for being here.

Dr. HOGARTH. Thank you.

Mr. RADANOVICH. Mr. Gordon, would you care to recreate this

scene in an ideal situation since 1967, since the appearance of an

Endangered Species and explain to me how things maybe should

have happened and what should have been allowed, maybe what

should not have been allowed?

Mr. GORDON. Yes, sir. I think it is quite simple. The law says if

a species may be present, then if there is a government action

going on in that area that may affect it, you must do a biological

assessment. These discharges constitute an action that is going

into habitat that Federal biologists have determined is the primary, if not only, spawning ground of the endangered shortnose

sturgeon, yet no biological assessment has been done.

Mr. RADANOVICH. When should that biological assessment should

have occurred?

Mr. GORDON. I would argue that at least they should have started the process back in 1996 when the first specimen turned up in

the river, which brings up another important question. You have

heard that gee, there were only four and we have looked for these

fish, according to the National Marine Fisheries Service, but we

cannot identify whether they are in the Upper Potomac or not and

the four we found were downriver.

The four that were found were caught by commercial fishermen,

not by the National Marine Fisheries Service or the Fish and

41

Wildlife Service, and they were brought in through a reward program. The fact of the matter is, however, that commercial fishing

is illegal in the District of Columbia so you would not turn up any

in D.C. waters.

Additionally, back in 1999 the National Marine Fisheries Service

stated that there was going to be an assessment done to determine

the presence of the shortnose sturgeon in the Upper Potomac and

stated that this assessment would be critical to their assessment

of the presence of the fish in the river. That assessment has never

been done. So when you hear today that gee, we are not sure if it

is there or not, the reason people are not sure if it is there or not

is basically hiding behind studies that have not been done that

should have been done. Additionally, there is substantial anecdotal

information and historical information that would indicate that

this species is present.

If I could, I would like to address several things that have been

said that are just not accurate. First, I have been down there. I

took that photograph of the discharge and that location is nowhere

near the sewer line. The sewer line runs along the C&O Canal

itself and this is hundreds of yards from it. And I have smelled it

there; it is not from sewage.

Secondly, I am sad that Ms. McCollum left because I think there

are some questions that she raised that were important, one being

does the Park Service have some authority over some of these

things?

The discharges into Little Falls Branch of chlorine that exceeded

Maryland state standards are into the national park. Little Falls

Branch is in the national park and the Park Service has an obligation to protect the park resources.

And as concerns chlorine there are numerous problems I would

like to just bring up. On October 9 of this year the Corps received

a letter from the D.C. Department of Environmental Health Administration that states the following. ‘‘It is our understanding that

the final step in the process is the use of finished potable water to

flush the remaining solids. If finished water is used in the flushing

process, the discharge contains chlorine, presently in the form of

chloramine used in the disinfection process. The existing NPDES

permit—that is Clean Water Act permit—for the two reservoirs

contains no provision for the discharge of chlorine in any form. We

are requesting that you immediately initiative action to ensure that

no chlorine is discharged in the Potomac River.’’ So there is a serious concern about that.

Additionally, I believe Colonel Fiala said that any harm that is

done from their discharges is temporary and I would beg to differ.

The report that the Corps produced, given the most favorable reading, says that it may pose a moderate risk to the survival of a species of concern, and that is the deposition of the sediments with

alum, which has some toxicity to fish eggs and larva. That is the

report’s conclusion and the report actually recommends suspending

discharges for 4 months of the year, which is not quite as significant a recommendation as the panel put together and sponsored by

the EPA. Their number one recommendation was to terminate discharges. This panel was composed of representatives from the Fish

and Wildlife Service, the National Marine Fisheries Service,

42

Maryland Department of the Environment, D.C. Fisheries and the

Potomac Commission.

Now just two other things if you will bear with me but I have

been sitting here listening to these things and I wanted to address

them. I would like to just read one sentence from a letter from the

former chief of the aqueduct that states, ‘‘We would like to discharge the basins at night to minimize the impact on any river activities.’’ So I think it is fairly straightforward why the discharges

occur at night.

And finally, Mrs. Christensen asked a question about sediment

and whether it was the sediment from the discharges or the sediment that was naturally occurring in the river that actually affected the fish. The study that was done by the Corps mapped and

measured specifically those sediments that come from the discharges and the recommendation that the discharges be terminated

for 4 months of the year and the statement that these discharges

pose a moderate risk to the survival of species of concern is based

specifically on these sediments, the chemically treated sediments

and the alum that comes with them that is discharged by the

Corps, not the ambient sediments in the river.

Mr. RADANOVICH. Thank you.

Col. Fiala, I want to ask you a question. Just so you know, my

big concern is that I think the Endangered Species Act is poorly

written and because of that, it is being subjectively implemented

all across the United States. It is my opinion that if the ESA was

enforced in urban areas the way it is enforced in rural America

where we do not have the votes to change it in the Congress, people would not tolerate it.

I have an instance in my part of the country in California where

they are trying to site a tenth campus for the University of California. It has been designated in a place called Merced, California.

They have gone through a site selection process and they have

identified a nice site. It is at the base of the Sierra foothills at an

elevation of about 1,000 feet and it is rolling terrain. Of course,

when the rainy season hits in California the water table fills up

and there are little enclaves of water that are there until the dry

season comes and basically they drain off. They have been given

this name of vernal pools and in them is a listed species by the

name of a ferry shrimp.

The reason I bring this up is because you had mentioned previously in your testimony that there have to be environmental consequences on the decisions that you make with regard to, in this

instance, the dumping into the Potomac, where in this instance in

UC-Merced that is not, at least according to the law and at least

according to the way that they are implementing the Endangered

Species Act in that case, there is absolutely to be zero consequence

to the environment, and all else must wrap itself around that,

which provides a contrast to the way that this is being handled, the

dumping of the sediment into the Potomac River and your statement that there are environmental consequences.

Is that the way you view your implementation of the Endangered

Species Act?

Col. FIALA. Sir, in this case specifically, the Washington Aqueduct and the Corps of Engineers are an applicant to the EPA for

43

its discharges. Therefore I would defer that question to the EPA

and would caution that we are getting close to some issues that

Federal agencies before you are in litigation over, so I want to

make sure we know the limits as to— Mr. RADANOVICH. Maybe you can answer a general question for

me. Then do you believe in the implementation of the Endangered

Species Act? The law reads that if an endangered species is discovered that the species itself and the habitat must be protected at all

cost, period. Do you believe that that is the case? Because you are

charged with implementing the Endangered Species Act. Do you

believe that or not?

Col. FIALA. We are operating under the rules and regulations and

the laws of our government. We have a permit. We have asked for

renewal of that permit. There is a process for that permit renewal;

we are following that process. We have been asked through our

permitting process to provide studies on water quality; we have

done that in two separate occasions. We have brought good science

and engineering to this debate and we feel in the consultation process that is on-going with EPA and our other Federal agencies here

that we will come to a solution that the Washington Aqueduct will

move out sharply and execute.

Mr. RADANOVICH. Then in your opinion, there are environmental

consequences to the actions that you take. Is that what you sought

in the permit that you received from the EPA or were you seeking

strict enforcement?

I understand that you are under permit from the EPA but your

testimony says that there are environmental consequences to every

action that you take when you need to enforce it, and that is not

according to the law basically in the Endangered Species Act. You

certainly must have a concern about that because you are charged

with enforcing the Endangered Species Act in this case and yet you

are being permitted by the EPA not to, basically.

Col. FIALA. We are under the consultation process under the Endangered Species Act and study is part of that and we are working

toward a solution under the law, under the Endangered Species

Act, so we are following the letter of the law.

Mr. RADANOVICH. Okay.

Mr. Gordon, did you have the opportunity to read the October 4,

2001 report prepared by the Army Corps of Engineers entitled

‘‘Water Quality Studies in the Vicinity of the Washington Aqueduct’’? If so, can you give me some of your opinions on its conclusions?

Mr. GORDON. Yes, sir. I have reviewed it and we have toxicologists and chemists and such reviewing it at this time, as well.

We found that there were a lot of missing elements and lacking elements, that the breadth of the study was not really quite sufficient

and that a lot of the conclusions drawn from the study were not

supported by the data it contains.

Let me give you a few examples of things that struck me particularly strange. When you hear testimony today that the discharges

are not particularly toxic, we compared the concentration of, for example, total suspended solids that they used to test the toxicity

with the historical average of the total suspended solids discharged

by the facility and you will find that more than 85 percent of the

44

discharges from the Washington Aqueduct have a maximum total

suspended solids that exceeded the test concentration at which the

report found chronic growth toxicity to aquatic invertebrates and

that some of those exceeded the toxicity level by as much as 3

times; about 30% of them; so quite significant.

This graph over here shows basically the total suspended solids

level in different discharges from the aqueduct from the reports

that the aqueduct submits to the EPA and those are ranked from

highest to lowest since 1992, discharges above Chain Bridge, and

the yellow lines are the level of the solids in the effluent samples

used to measure toxicity and you can see that they are well below

the average of the total suspended solids included in the effluent.

There are numerous other problems with the study. The study

was supposed to incorporate a study on striped bass, given that

they are more sensitive. Those studies failed. There was supposed

to be an aspect of it to determine the density and diversity of

aquatic invertebrates. That did not generate reliable data because

the devices filled up with too much sediment.

The discharge point studied at that outfall that is indicated by

that chart, the samples were actually taken 520 meters downstream. The notion presented was that the river is too narrow

there and it is somewhat dangerous. Sometimes that is true but I

can tell you I was there 2 weeks ago at that outfall and you could

reach around the rocks and find sediment that is clearly this kind

of stuff because it had the same gelatinous consistency to it, that

was several inches deep.

The plume modeling for the sedimentation used an estimated

concentration of 10,000 milligrams per liter to determine how much

sediment accumulation there would be. Well, clearly many, many

of the discharges from the aqueduct occur at levels way above that.

Those are just a few of the problems and there are many. But

even given that, you find that this report itself concludes that the

discharges should be discontinued at least during the spawning

season and that actually the discharges from one of the outfalls

was toxic enough that it would require extending the pipe 200 feet

further into the river to dilute it to the point where it no longer

would be toxic.

I think those things are all significantly different than the notion

that has been presented to you here today that gee, there is not

really any problem with them; they are not too toxic, they are not

that bad for fish; maybe there is a minor risk from sedimentation

or whatever risk is presented goes away after we discharge. That

notion cannot be backed up by this study and is absolutely contrary

to empirical, real-world experience. All the fishermen that go there

will tell you that fish disappear, that the beds are affected by sedimentation, that the creeks that flow through the park, particularly

Little Falls Branch, are devoid of life below the discharge point. So

I do not place a lot of credence in the study.

Mr. RADANOVICH. Okay, thank you very much.

Miss Gleason, I have a number of questions that I would like to

get on the record, if I could. Would you please clarify for me why

the EPA continues—there seems to be an issue on the permit—why

the EPA continues to allow the Corps to go forward with the dumping when it stated on the record that it would not extend the

45

permit for a period of more than 6 months? Apparently EPA has

gone on record that you would not allow the dumping and because

of that, would not extend the permit for more than 6 months.

Ms. GLEASON. I am not quite sure what that means, Mr. Chairman. Perhaps you might be referencing the spawning period in the

river that is about a four- to 5-month period?

Mr. RADANOVICH. This was in reference to a memo on April 4,

1996. It says, ‘‘We cannot, however, delay indefinitely and anticipate issuing the draft permit no later than the end of the fiscal

year,’’ which was at the end of 1996, and yet the permit has been

reissued. This was stated in an EPA memorandum to Congressman

Jim Moran where it stated in here that you would not extend the

permit based on the dumping and yet you have extended the permit in addition to that. It is a contradiction and EPA stands on the

issue, I think.

Ms. GLEASON. The permit, once it expired in ’94 since the Corps

had submitted a timely reapplication, the permit under law administratively extends indefinitely until EPA issues a renewed permit.

I am not sure. I would have to get back to you on that letter.

I am not quite sure.

Mr. RADANOVICH. Okay, we can certainly provide you with a

copy. It was an April 4 letter written by W. Michael McCade, the

regional administrator, to Congressman Jim Moran, which basically said you are not going to allow this to continue for the end

of the fiscal year, which was—

Ms. GLEASON. I would have to read the context. I am not quite

sure.

Mr. RADANOVICH. We are happy to provide you with it.

Are there no limits for alums or solids or irons on the Corps’

Washington Aqueduct permit? Do you have ceilings set for those

types of discharges?

Ms. GLEASON. No, there are no limits. Monitoring only.

Mr. RADANOVICH. Why is that if you are concerned about habitat

for endangered species, that you have not set limits for toxic elements of discharge into the river?

Ms. GLEASON. It would be the 1989 permit. When that was written it was not thought at the time that limits were appropriate.

There were no impacts known at that time, based on the record

that we have on the issuance of that ’89 permit. So you would not

put limits in a permit if you did not need them.

Mr. RADANOVICH. Even though there was habitat for endangered

species present?

Ms. GLEASON. We were not aware of that at the time.

Mr. RADANOVICH. It has been listed since 1967 but you were not

aware of it?

Ms. GLEASON. We were not aware that there was habitat that

was considered critical habitat under the ESA.

Mr. RADANOVICH. Are there any limits on any permits that you

issue?

Ms. GLEASON. Oh, absolutely.

Mr. RADANOVICH. But no limits on this one?

Ms. GLEASON. No.

Mr. RADANOVICH. This is an unlimited permit, basically.

46

Could you please name for me any other water treatment facility

in the United States that discharged chemically treated water into

National Park and National Heritage rivers? Are you aware of any?

Ms. GLEASON. I can tell you other facilities around the country

that have similar discharges— Mr. RADANOVICH. Into National Parks or Heritage rivers?

Ms. GLEASON. I am not sure if—I would think that maybe some

of the properties that they cross over, considering there are discharges into the Missouri and Mississippi Rivers. I would think

there are some parklands, whether they are state parks or national

parks. I would have to get back to you on that, particularly where

the pipes cross, but there are other facilities around the country

that discharge similar to the aqueduct.

Mr. RADANOVICH. Are there discharges into rivers where there

are known endangered species that require formal consultation?

Ms. GLEASON. Around the country?

Mr. RADANOVICH. Yes.

Ms. GLEASON. I am not aware of whether there are any endangered or listed species. I would have to get back to you on that.

Mr. RADANOVICH. Okay, thank you.

Mr. Parsons, if you can answer to me if you know that they are

discharging actually into the C&O National Park, cannot you just

say no? Is it not within the National Park Service’s authority to

say you cannot do this anymore? Do you have the power to stop

this?

Mr. PARSONS. Not that I am aware of.

Mr. RADANOVICH. Would you have it in any other park, do you

think? Is it because it is the C&O Canal National Park or do you

not have the authority as the superintendent there?

Mr. PARSONS. I do not see that we have the authority to do that.

Little Falls Branch is a natural stream that we happen to have

intruded on by passing over it with a canal. It is not as though we

are managing a lake below that has swimming or something that

is part of our resource. I am not sure we have any authority to do

that.

Mr. RADANOVICH. I just do not understand because if there was

chlorine being dumped into the Little Yosemite Creek that runs

over Yosemite Falls do you think that the Park Service might have

the authority to stop that?

Mr. PARSONS. I do not know. I can certainly research this and

get back to the Committee.

Mr. RADANOVICH. Interesting.

Mr. Parsons, do you believe that the Army Corps’ actions, specifically the discharge of sludge into the canal, does it impair park resources at all or the visitor’s experience? Can you answer that

question for me?

Mr. PARSONS. Well, our limited understanding of this is if it is

an impairment, it would be visual. That is, we have not found any

evidence that there is any impairment to resources or species in

the park.

Mr. RADANOVICH. But apparently there has been a Park Service

official that has filed a number of reports regarding the discharge

of sludge from the canal into the park. What action has been taken

to address these reports? I mean it is obvious that an officer within

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the National Park Service has filed reports saying that this is—the

Park Service sign says ‘‘Please report any listed activities on

National Park Service properties,’’ and one of those includes dumping of water waste. That is part of the charge of the National Park

Service and yet you think it does not impair the visitor experience

in this national park or does not cause disruption to the visitors

there?

Mr. PARSONS. Well, I am not familiar with the reports that you

are speaking of. My expertise goes to land resources, not the operational side of things. But I will certainly talk with our superintendent, Mr. Ferris, to see if those reports have been made available to him.

Mr. RADANOVICH. But I think those reports were filed to him so

you might want to check and see.

Mr. PARSONS. I will, absolutely.

Mr. RADANOVICH. Because the person filing the reports was just

doing his job, as required of a National Park Service employee.

Mrs. Christensen, did you have any other questions?

Mrs. CHRISTENSEN. No.

Mr. GORDON. Mr. Chairman, I would like, if I could, to just offer

something else on that point as regards effects on the national park

and the reports.

National Park Service police officers have filed several reports

and I would like to read just a paragraph from a report, a followup report produced by the EPA regarding their visit with one of the

National Park Service police officers following his report.

It states, ‘‘On January 30, 1999 Chris Lay, a Park Service employee, saw a discharge along the Potomac shoreline in the District

of Columbia. The discharge was described as black, foul-smelling

and coming five feet up in the drainage channel. The channel runs

approximately 30 feet to the river. As the flow subsided there were

dead eels in the channel bed and fishermen in the area observed

dead fish in the river. Officer Critchfield visited the same location

a couple of days later and saw soap suds coming out of the same

pipe. A call to Woody Peterson, representative of the Washington

Aqueduct, confirmed that the Georgetown Basin was dumped at

about the time that Chris Lay made his observations. Due to the

recent drought in the Potomac watershed, the solids were held in

the basin 11 months instead of the normal 4 months. Since the

solids are under anaerobic conditions, this would probably account

for the noxious odor of the discharge. Mr. Peterson also confirmed

that soap suds may have discharged from the pipe as they use a

cleaner after flushing the solids from the basin.’’

Officer Critchfield then took the EPA official to the location that

is permitted under the Maryland Department of Environment

known as outfall 5 and it has been mentioned several times today

as regards chlorine going into Little Falls Branch. It says that Officer Critchfield showed the inspector this discharge and then it

says, ‘‘The area was fenced off and drops down about 50 feet. The

estimated flow was 100 gallons per minute. According to the Park

Police officer, this discharge is always flowing whenever he comes

by this location. The location, as shown on picture 4, had a strong

smell of chlorine from a distance of about 50 feet above the discharge.’’

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Mr. RADANOVICH. Thank you, Mr. Gordon.

One final question for Col. Fiala, if you would. You have stated

that the chlorinated water is used to wash out the basins and in

your testimony you stated that the chlorine is effectively used up.

What measurements do you have to validate this conclusion?

And if so, why did the D.C. Environmental Health Administration

state in a letter dated October 9, 2001 that the discharge contains

chlorine and demand that immediate action be taken to ensure

that no chlorine is discharged?

Col. FIALA. We operate under a permit, so therefore we have no

responsibility to sample the discharge. However, the science will

tell you that chlorinated water very quickly gives up its chlorine

residue when it becomes volatized as it strikes a wall or strikes a

basin.

In addition, the organic matter that is contained in the sediment

will react very quickly with the chlorine material that is in the finished water and consume it well before that sediment is discharged

into the Potomac River.

Mr. RADANOVICH. Are you aware of any aquatic life in the stream

below the discharge? To my knowledge, everything is dead beyond

that point where the chlorine enters the discharge point.

Col. FIALA. I am not aware of it.

Mr. RADANOVICH. I think it is.

You also mentioned that the chlorine discharge occurs every five

to 6 years. I do not expect you to have this answer for me right

away but if you can let me know if it did occur on Friday, October

19, I would appreciate knowing that.

Col. FIALA. We will provide that.

Mr. RADANOVICH. Thank you.

Mr. GORDON. Mr. Chairman, on the chlorine I would just note

that on the Corps’ website it had a discussion of the conversion

from chlorine to chloramine, which took place a few years ago and

the website stated, ‘‘Unlike chlorine, chloramines do not dissipate

in the atmosphere by standing or aerating.’’

And then the notice went on to tell people that you needed to

take specific treatment steps. You could not just depend on volatilization of the chlorine when it is discharged. In fact, there was

enough of a concern about this that every single customer, at least

in Arlington but I believe in other jurisdictions, was sent a notice

by the wholesale customers of the aqueduct not to add the water

produced by the aqueduct to their fish tank because it was harmful

to fish.

Mr. RADANOVICH. Miss Gleason, Col. Fiala stated that the testing

requirement was not in the permit that was issued. Why not?

Ms. GLEASON. In 1989 there was not a concern. People were not

concerned about that. They were using chlorine at that time. They

have recently switched to chloramine.

Mr. RADANOVICH. Okay. Thank you very much. It has been an

illuminating hearing. I do have a concern about the environment

but I have to tell you, if the ESA was implemented in my area of

the state there would be people alive and there would be probably

more jobs.

I appreciate the testimony of everybody here and your appearance here but I think that on the Supreme Court it says equal

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application of the law and right here in the beltway there seems

to be pretty much disregard for the Endangered Species Act and

I think it is evidenced by the testimony here today. I hope some

day that it can be taken care of legislatively, if not administratively.

But I do appreciate your being here and to the members of the

panel, as well, and this hearing is closed. Thank you.

[Whereupon, at 12:07 p.m., the Subcommittee adjourned.]

[The following letters were submitted for the record:]

1. A Letter from the Department of the Army.

2. A Letter from the Environmental Protection Agency.

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