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[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]

 
           THE DISCHARGE EFFECTS OF THE WASHINGTON AQUEDUCT
=======================================================================

                           OVERSIGHT HEARING

                               before the

      SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            October 30, 2001
                               __________

                           Serial No. 107-71
                               __________

           Printed for the use of the Committee on Resources

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
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                         COMMITTEE ON RESOURCES
                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                      George Miller, California
  Vice Chairman                         Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana        Dale E. Kildee, Michigan
Jim Saxton, New Jersey                  Peter A. DeFazio, Oregon
Elton Gallegly, California              Eni F.H. Faleomavaega, American Samoa
John J. Duncan, Jr., Tennessee          Neil Abercrombie, Hawaii
Joel Hefley, Colorado                   Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland            Frank Pallone, Jr., New Jersey
Ken Calvert, California                 Calvin M. Dooley, California
Scott McInnis, Colorado                 Robert A. Underwood, Guam
Richard W. Pombo, California            Adam Smith, Washington
Barbara Cubin, Wyoming                  Donna M. Christensen, Virgin 
George Radanovich, California           Ron Kind, Wisconsin Islands
Walter B. Jones, Jr., North Carolina    Jay Inslee, Washington
Mac Thornberry, Texas                   Grace F. Napolitano, California
Chris Cannon, Utah                      Tom Udall, New Mexico
John E. Peterson, Pennsylvania          Mark Udall, Colorado
Bob Schaffer, Colorado                  Rush D. Holt, New Jersey
Jim Gibbons, Nevada                     James P. McGovern, Massachusetts
Mark E. Souder, Indiana                 Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon                     Hilda L. Solis, California
Michael K. Simpson, Idaho               Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado            Betty McCollum, Minnesota
J.D. Hayworth, Arizona               
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                   Allen D. Freemyer, Chief of Staff
                      Lisa Pittman, Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
                  Jeff Petrich, Democrat Chief Counsel
                                 ------                                

      SUBCOMMITTEE ON NATIONAL PARKS, RECREATION, AND PUBLIC LANDS

               GEORGE P. RADANOVICH, California, Chairman
      DONNA M. CHRISTENSEN, Virgin Islands Ranking Democrat Member

Elton Gallegly, California              Dale E. Kildee, Michigan
John J. Duncan, Jr., Tennessee          Eni F.H. Faleomavaega, American Samoa
Joel Hefley, Colorado                   Frank Pallone, Jr., New Jersey
Wayne T. Gilchrest, Maryland            Tom Udall, New Mexico
Walter B. Jones, Jr., North Carolina,   Mark Udall, Colorado
  Vice Chairman                         Rush D. Holt, New Jersey
Mac Thornberry, Texas                   James P. McGovern, Massachusetts
Chris Cannon, Utah                      Anibal Acevedo-Vila, Puerto Rico
Bob Schaffer, Colorado                  Hilda L. Solis, California
Jim Gibbons, Nevada                     Betty McCollum, Minnesota
Mark E. Souder, Indiana
Michael K. Simpson, Idaho
Thomas G. Tancredo, Colorado

                            C O N T E N T S

                              ----------                              
                                                                   Page

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

Statement of Members:
    Christensen, Hon. Donna M., a Delegate in Congress from the 
      Virgin Islands.............................................     5
    Radanovich, Hon. George P., a Representative in Congress from 
      the State of California....................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Fiala, Colonel Charles J., Jr., Commander and District 
      Engineer, Baltimore District, U.S. Army Corps of Engineers, 
      Baltimore, Maryland........................................    17
        Prepared statement of....................................    19
    Gleason, Patricia, Chief of the Maryland and District of 
      Columbia Watershed Branch, Water Protection Division, U.S. 
      Environmental Protection Agency, Region 3, Washington, D.C.    11
        Prepared statement of....................................    13
    Gordon, Rob, Director, National Wilderness Institute, 
      Alexandria, Virginia.......................................    21
        Prepared statement of....................................    23
    Hogarth, Dr. William T., Assistant Administrator for 
      Fisheries, National Marine Fisheries Service, National 
      Oceanic and Atmospheric Administration, U.S. Department of 
      Commerce, Washington, D.C..................................     8
        Prepared statement of....................................     9
    Leisch, Gordon, Field Biologist, Formerly of the Department 
      of the Interior, Office of Environmental Policy, Arlington, 
      Virginia...................................................    24
        Prepared statement of....................................    26
    Parsons, John, Associate Regional Director for Lands, 
      Resources, and Planning, National Capital Region, National 
      Park Service, U.S. Department of the Interior, Washington, 
      D.C........................................................     6
        Prepared statement of....................................     7

Additional Materials:
    Department of the Army, Letter submitted for the record......    50
    Environmental Protection Agency, Letter submitted for the 
      record.....................................................    60

 OVERSIGHT HEARING ON THE DISCHARGE EFFECTS OF THE WASHINGTON AQUEDUCT 
                   ON THE C&O NATIONAL HISTORIC PARK

                              ----------                              

                       Tuesday, October 30, 2001

                     U.S. House of Representatives

      Subcommittee on National Parks, Recreation, and Public Lands

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:14 a.m., in 
Room 2322, Rayburn House Office Building, Hon. George 
Radanovich [Chairman of the Subcommittee] presiding.

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

    Mr. Radanovich. Good morning and welcome to the 
Subcommittee on National Parks, Recreation and Public Lands 
oversight hearing on the effects of Washington Aqueduct 
discharge on the C&O Canal National Historic Park.
    Thank you for making the right room. I know the hearing 
rooms have changed about four different times, given the 
anthrax scare, and I know you all have invented different ways 
to get into the Rayburn House Office Building because most of 
the entrances are not open and the tunnels are closed. So I 
want to thank you all very much for being here.
    The Subcommittee on National Parks, Recreation and Public 
Lands is meeting today on the effects of Washington Aqueduct 
discharge on the C&O Canal National Historic Park. I would like 
to say from the start that the purpose of this oversight 
hearing is not an attempt to alter the operation of the 
Washington Aqueduct to supply drinking water to the residents 
of the District of Columbia, Arlington County, or the City of 
Falls Church, Virginia, along with a number of installations 
throughout the Metro area. This is especially significant in 
light of the events surrounding September 11.
    Rather, the purpose of this important hearing is to discuss 
equal application of the law, specifically, the application of 
the National Park Service Organic Act, the Endangered Species 
Act, and the Clean Water Act. The Subcommittee would like to 
understand how the Washington Aqueduct is permitted to annually 
discharge over 200,000 tons of chemically treated sediment or, 
in simpler terms, smelly polluting sludge, into the C&O Canal 
National Historic Park and the Potomac River, which is a 
Heritage River proclaimed in 1998 by former President Clinton.
    I want to add that the discharge of this polluting sediment 
is not a recent event. The Washington Aqueduct operation has 
been continuously dumping chemicals and sediments into the C&O 
Canal and the Potomac River for decades with the knowledge and 
the blessing of the Park Service, the EPA, and other agencies.
    In this hearing the Subcommittee will seek to examine the 
following. Why has the National Park Service allowed the U.S. 
Army Corps of Engineers to continuously discharge sludge and 
other chemically treated water into waters within the C&O Canal 
National Historic Park? I ask this question because the 
National Park Service Organic Act and the Management Policies 
Act of 2001 clearly mandate that above all else, the Park 
Service is to protect and preserve unimpaired the resources and 
values of the park for the enjoyment of the people. Allowing 
200,000 tons of sludge to be dumped into the C&O and the 
abutting Potomac River is hardly protecting park resources, 
especially when one of them, the shortnose sturgeon, is on the 
endangered species list and appears to be a spawning ground for 
that very same animal.
    What is the relationship between the Park Service and the 
agency that operates the Washington Aqueduct, the U.S. Army 
Corps of Engineers, and the Environmental Protection Agency, 
the agency that continues to approve and permit the sludge to 
be discharged from the water treatment plant into local 
waterways? I ask this question because it is my understanding 
that the 1989 U.S. Army Corps permit issued for the continued 
operation of the aqueduct conditioned the construction of 
additional water basins at the Dalecarlia plant on developing a 
sludge treatment facility. Now, 11 years later, the treatment 
facility has not been constructed nor even planned. However, 
other water treatment facilities across the country, having far 
fewer financial resources, have been able to move forward with 
such modernizations. Why hasn't this one and why does the EPA 
continue to permit the dumping when it may be affecting an 
endangered species?
    Question number three. What steps has the National Park 
Service taken to eliminate the detrimental effects from the 
plant's discharge that has and continues to enter the park's 
waterways, creating a foul odor, unsightly color to the water, 
and is lethal to aquatic life? I ask this question knowing that 
a National Capitol Region Park Police officer has filed 
numerous reports on the discharges, only to see them ignored. 
In fact, the Committee staff just visited the C&O Canal 
National Park last Friday and experienced a strong odor of 
chlorine. Clearly the chemical discharges continue to impact 
the resources. Why is the Park Service doing nothing about 
this?
    Question four. What steps under the Endangered Species Act, 
specifically consultations mandated by Section 7, has the 
National Marine Fisheries Service taken to protect the 
endangered shortnose sturgeon and its habitat in the Potomac 
River from the continuous discharge of sludge from the water 
treatment plant?
    And lastly, why does the Washington Aqueduct appear to 
receive unusual favorable treatment and support from a number 
of Federal agencies that would otherwise be fighting to be in 
front of the line to shut down a similar water treatment plant 
anywhere else in America where sludge has been discharged not 
only into a heritage river but also into a national park 
visited by over 2 million people annually?
    I would like to say that as a member who represents 
Yosemite National Park, I have seen first-hand how quickly your 
agencies move to shut down a facility when it discharges 
polluting waters into a national park, as did the EPA when the 
Wawona waste water treatment plant discharged into Yosemite 
National Park. I find it very troubling to understand why your 
agencies have stood by for so long and allowed discharge from 
the aqueduct into the C&O Canal National Historic Park while in 
other instances have sought immediate shutdowns.
    And finally, I cannot help but be reminded of the 
incomprehensible situation in Klamath Falls, Oregon. As all of 
you know, earlier this year the Department of the Interior 
completely cut off water from hundreds of farmers and thus 
their livelihood--many of them, if not all, are being forced 
into bankruptcies--so that the habitat of an endangered sucker 
fish could be preserved--the habitat. There was no notice that 
the fish was present; it was just the habitat, very different 
from the situation here where we know there is an endangered 
species and the dumping still occurs. Yet another example of 
where the Federal Government did not hesitate to take action to 
protect the habitat of an endangered fish.
    I think we ought to recognize that the new administration 
has inherited the indifference of previous administrations on 
this matter and it is my hope that a proactive decision will be 
made to remedy this problem as soon as possible, rather than 
continue the head-in-the-sand approach.
    I hope to have these and other questions answered today and 
I look forward to the testimony of the witnesses and I 
appreciate the fact that you are here.
    [The prepared statement of Mr. Radanovich follows:]

   Statement of The Honorable George Radanovich, a Representative in 
                 Congress from the State of California

    The Subcommittee on National Parks, Recreation, and Public Lands 
will come to order. Good afternoon everyone. Today, the Subcommittee 
will examine the effects of the discharge from the Washington Aqueduct 
on the Chesapeake &Ohio Canal National Historic Park and into the 
Potomac River.
    I would like to say from the start, the purpose of this oversight 
hearing is not an attempt to alter the operation of the Washington 
Aqueduct to supply drinking water to the residents of the District of 
Columbia, Arlington County, the City of Falls Church, Virginia, along 
with a number of installations throughout the Metro area. This is 
especially significant in light of the events surrounding September 
11th.
    Rather, the purpose of this important hearing is to discuss equal 
application of the law, specifically the application of the National 
Park Service Organic Act, the Endangered Species Act, and the Clean 
Water Act. The Subcommittee would like to understand how the Washington 
Aqueduct is permitted to annually discharge over 200,000 tons of 
chemically treated sediment, or in simpler terms, smelly polluting 
sludge, into the C&O Canal National Historic Park and the Potomac 
River, which was proclaimed a Heritage River in 1998 by former 
President Clinton. I want to add that the discharge of this polluting 
sediment is not a recent event. The Washington Aqueduct operation has 
been continuously dumping chemicals and sediments into the C&O Canal 
and the Potomac River for decades with the knowledge and blessing of 
the Park Service, the EPA, and other agencies.
    In this hearing the Subcommittee seeks to examine the following:
    1) LWhy has the National Park Service allowed the U.S. Army Corps 
of Engineers to continually discharge sludge and other chemically 
treated water into waters within the C&O Canal National Historic Park? 
I ask this question because the National Park Service Organic Act and 
the Management Policies of 2001 clearly mandate that, above all else, 
the Park Service is to protect and preserve unimpaired the resources 
and values of the park for the enjoyment of the people. Allowing 
200,000 tons of sludge to be dumped into the C&O and abutting Potomac 
River hardly is protecting park resources, especially when one of them, 
the shortnose sturgeon, is on the endangered species list.
    2) LWhat is the relationship between the Park Service and the 
agency that operates the Washington Aqueduct, the U.S. Army Corps of 
Engineers, and the Environmental Protection Agency, the agency that 
continues to approve and permit the sludge to be discharged from the 
water treatment plant into local waterways? I ask this question because 
it is my understanding that the 1989 U.S. Army Corps permit issued for 
the continued operation of the Aqueduct conditioned the construction of 
additional water basins at the Dalecarlia plant on developing a sludge 
treatment facility. Now, eleven years later, the treatment facility has 
not been constructed nor even planned. However, other water treatment 
facilities across the country, having far fewer financial resources, 
have been able to move forward with such modernizations. Why hasn't 
this one and why does the EPA continue to permit the dumping when it 
may be effecting an endangered species?
    3) LWhat steps has the National Park Service taken to eliminate the 
detrimental effects from the plant's discharge that has, and continues 
to enter the park's waterways creating a foul odor, unsightly color to 
the water, and is lethal to aquatic life? I ask this question knowing 
that a National Capital Region Park Police officer has filed numerous 
reports on the discharges only to see them ignored. In fact, Committee 
staff just visited the C&O Canal National Park last Friday and 
experienced a strong odor of chlorine. Clearly, the chemical discharges 
continue to impact park resources. Why is the Park Service doing 
nothing about this?
    4) LWhat steps under the Endangered Species Act, specifically 
consultations mandated by Section 7, has the National Marine Fisheries 
Service taken to protect the endangered shortnose sturgeon and its 
habitat in the Potomac River from the continuous discharge of sludge 
from the water treatment plant?
    5) LAnd lastly, why does the Washington Aqueduct appear to receive 
unusual favorable treatment and support from a number of Federal 
agencies that would otherwise be fighting to be in front of the line to 
shut down a similar water treatment plants anywhere else in America 
where sludge was being discharged into not only a heritage river, but 
also into a national park visited by over 2 million people annually?
    I would like to say as the Member who represents Yosemite National 
Park, I have seen first hand how quickly your agencies can move to shut 
down a facility when it discharges polluting waters into a national 
park as did the EPA when the Wawona waste water treatment plant 
discharged into Yosemite National Park. I find it very troubling to 
understand why your agencies have stood by for so long and allowed 
discharge from the Aqueduct into the C&O Canal National Historic Park 
while in other instances have sought immediate shut-downs.
    Finally, I cannot help but be reminded of the incomprehensible 
situation in Klamath Falls, Oregon. As all of you know, earlier this 
year the Department of Interior completely cut off all water from 
hundreds of farmers--and thus their livelihood--so that the habitat of 
the endangered sucker fish could be preserved. Yet another example 
where the Federal Government did not hesitate to take action to protect 
the habitat of an endangered fish.
    I think we ought to recognize that the new Administration has 
inherited the indifference of previous Administrations on this matter. 
It is my hope that a proactive decision will be made to remedy this 
problem as soon as possible, rather than to continue the head-in-the-
sand approach.
    I hope to have these and other questions answered today, and I look 
forward to the testimony of all of our witnesses. I now turn to the 
Ranking Member for her opening statement.
                                 ______
                                 
    Mr. Radanovich. And I now turn to my Ranking Member, Ms. 
Christensen, for her opening statement.

STATEMENT OF HON. DONNA M. CHRISTIAN-CHRISTENSEN, A DELEGATE IN 
                CONGRESS FROM THE VIRGIN ISLANDS

    Mrs. Christensen. Good morning. Mr. Chairman, thank you for 
continuing the business of our Committee. It is good to know 
that we are still working, especially since I do have a hearing 
coming up later on this week that is of great interest to my 
constituents and some of our other colleagues, so I want to 
commend you and the staff for keeping the Committee working.
    As we understand it, the purpose of this oversight hearing 
is to examine the effects of the discharge of sediment and 
pollutants from the Washington Aqueduct on the C&O Canal 
National Historic Park and the habitat and population of the 
endangered shortnose sturgeon. We certainly share concern for 
both the park and the sturgeon and hope that today's hearing 
will provide the Committee information that will be useful in 
addressing any problems that may exist. But while we share some 
of the concerns you expressed, we do have some questions 
regarding the issues raised by this hearing.
    It is our understanding that the aqueduct is operated by 
the Army Corps of Engineers, an agency over which this 
Subcommittee has no jurisdiction. In fact, of the agencies 
invited to testify today, only the Park Service falls within 
the purview of this Subcommittee and despite the impact on the 
park of the operations of the canal, it is unclear whether the 
National Park Service has any authority over the operation of 
the aqueduct. In addition, whatever steps may need to be taken 
to protect this endangered species are also outside of the 
Subcommittee's jurisdiction.
    There may well be changes that need to be made in the 
manner in which this aqueduct is operated. Unfortunately, were 
legislation introduced to make those changes it also seems 
unlikely that it would be referred to this Subcommittee.
    However, we have an outstanding array of witnesses. I would 
like to welcome them this morning and hope that the information 
they provide will prove valuable and I look forward to hearing 
their testimony.
    Mr. Radanovich. Thank you very much.
    Any other opening statements from any other members?
    With that, we will proceed with the hearing. As you know, 
there is one panel today and many folks on that panel. On panel 
one I would like to again welcome Mr. John Parsons, who is the 
Associate Regional Director of Lands, Resources and Planning 
for the National Capitol Region of the Park Service, U.S. 
Department of the Interior.
    Also with us--and welcome, Mr. Parsons--Mr. William 
Hogarth, who is the Assistant Administrator for Fisheries, 
National Marine Fisheries, National Oceanic and Atmospheric 
Administration, U.S. Department of Commerce. Welcome.
    Also, Ms. Patricia Gleason, Chief of the Maryland and 
District of Columbia Watershed Branch of the United States 
Environmental Protection Agency. I would like to welcome you 
and thank you for being here.
    Colonel Charles Fiala, who is the Commander and District 
Engineer of the Baltimore District for the Army Corps of 
Engineers. Welcome again, Col. Fiala.
    Mr. Rob Gordon is the Director of the National Wilderness 
Institute in Alexandria, Virginia and Mr. Gordon Leisch is a 
Field Biologist, formerly of the Department of the Interior, 
Office of Environmental Policy. Welcome to you, as well.
    What I would like to do is allow everybody to make their 
opening statement. Once we get through we are just going to 
open it all up for questions.
    So Mr. Parsons, if you would like to begin? And I suppose 
we will do the clocks, although I want to make sure you get all 
your information out. If we have to take up information and 
follow-up questions, we will do it that way. So if you would be 
mindful of the clocks, that would be great. You have 5 minutes 
and begin if you would like.

STATEMENT OF JOHN PARSONS, ASSOCIATE REGIONAL DIRECTOR, LANDS, 
RESOURCES, AND PLANNING, NATIONAL CAPITAL REGION, NATIONAL PARK 
   SERVICE, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, D.C.

    Mr. Parsons. Thank you, Mr. Chairman. I believe you have 
copies of my testimony and in the interest of time I will just 
summarize that.
    I thought a bit of history about the C&O Canal might be in 
order this morning. The C&O Canal construction began in 1828. 
This section of the river--that is, the first 23 miles--was 
opened to navigation in 1831. It then continued on to 
Cumberland and did not get there until 1850, but the section we 
are talking about was operational long before the Washington 
Aqueduct came into existence in 1864.
    We have been able to uncover no records that indicate 
whether rights-of-way or permits were issued by the Canal 
Company in the period of 1860. We will continue that search but 
it is a very laborious process, frankly.
    I should point out that the Canal Company did not own all 
the land in question here. They bought a right-of-way for the 
canal. Between the canal and the river was owned privately at 
that time. It did not come into public ownership until the 
1940's and '50's and was acquired by the National Capital 
Planning Commission pursuant to Capper-Crampton Act of 1929 to 
protect the shore lines of the Potomac.
    As we understand it, there are seven outfalls that exist in 
Montgomery County and the District of Columbia. Some discharge 
raw river water before it is even treated at Dalecarlia and the 
others are discharged downstream from that point.
    The canal park was established in 1971 and a proviso in 
that was to allow all existing rights-of-way and permits to 
remain in place. That is, there was no requirement by the 
National Park Service to issue new permits or new rights-of-way 
for pipes and discharges that occurred under the canal. I 
should point out that none of these pipelines go into the 
canal; rather, they go beneath it in culverts or pipes and 
discharge into the Potomac.
    As I am sure you know, the National Park Service has no 
requirement or jurisdiction over the waters of the Potomac 
River. Others here on the panel with me have that 
responsibility and are working on permits in that regard.
    That, in summary, concludes my testimony and I would be 
happy to answer any questions as we move along.
    [The prepared statement of Mr. Parsons follows:]

   Statement of John Parsons, Associate Regional Director for Lands, 
    Resources, and Planning, National Capital Region, National Park 
                Service, U.S. Department of the Interior

    Mr. Chairman, thank you for the opportunity to appear before your 
committee to discuss the impacts of discharges from the Washington 
Aqueduct on the Chesapeake and Ohio (C&O) Canal National Historical 
Park and on the habitat and population of the endangered shortnose 
sturgeon. Our comments will address the role of the C&O Canal National 
Historical Park in this matter.
    The U.S. Army Corps of Engineers (Corps) owns and operates the 
Washington Aqueduct, which provides drinking water for more than one 
million people in the metropolitan Washington area. Its history dates 
back to 1798 when, with the capital city under construction, George 
Washington suggested that ``the water of the Potomac may, and will be 
brought from Great Falls into the Federal City.'' In 1852, Congress 
commissioned a study of the water supply and, by 1864, the 12-mile 
aqueduct began carrying water to the Georgetown Reservoir. The primary 
water intakes for the aqueduct are located behind a low dam in the 
Potomac River at Great Falls. The river water runs in an underground 
pipe for most of its path to the Dalecarlia and Georgetown Reservoirs, 
which are used by the Corps to filter and treat water for public 
consumption.
    The operation of the Washington Aqueduct has a long history that 
predates the establishment of the C&O Canal National Historical Park. 
Below, we discuss some of the facts about some of the outfalls known to 
the National Park Service at this time. Three outfalls are in 
Montgomery County, Maryland. These are permitted by the State of 
Maryland and provide backflow release that may be used by the Corps 
during facility maintenance. These outfalls are infrequently used and 
release raw, untreated river water at points that are within the C&O 
Canal National Historical Park.
    A fourth outfall in Maryland is located near a pump station on 
Little Falls Branch, a few hundred feet upstream of the Clara Barton 
Parkway and the C&O Canal National Historical Park. The discharge flows 
into a natural stream that passes beneath the canal in a culvert. The 
discharge is permitted by the State of Maryland. Raw river water is 
discharged at this location during maintenance. On occasion, treated 
water is discharged here as well. The Corps has facilities to 
dechlorinate treated water prior to discharge into Little Falls Branch.
    In September 2001, as part of a cleanup effort from an August 
storm, a National Park Service contractor tested the soil from the 
Little Falls Branch box culvert to determine the potential presence of 
hazardous or toxic materials in the sediment of the culvert under the 
Canal. The test was undertaken with applicable US EPA SW-846 methods 
for aluminum, Polychlorinated Biphenyls (PCBs), and Toxic 
Characteristic Leaching Procedure for herbicides, certain metals, 
pesticides, volatile organics, and base neutrals/acid extractables. The 
testing did not detect any of the parameters tested for, at or near the 
respective methods' Limits of Quantitation. Aluminum and barium were 
identified, but at concentrations significantly lower than the Federal 
regulatory thresholds. Based on this test, the contractor firm 
indicated that the material from the box culvert does not appear to 
exhibit hazardous characteristics.
    Stream sedimentation resulting from discharge to Little Falls 
Branch does not appear to be a problem within the park. The topography 
of the area consists of a deep gorge with many rock ledges, and heavy 
runoff from natural as well as discharge events have scoured the stream 
bottom of sedimentation. Thus, accumulations of discharged sediments, 
if any, disburse easily into the stream and do not appear to 
significantly affect park resources.
    Three outfall discharges are piped across the park in the District 
of Columbia. These outfalls discharge water, sediment and aluminum 
sulfate (alum) from the settling basins at the Georgetown and 
Dalecarlia Reservoirs. One pipe discharges directly into the Potomac 
River, and the other two discharge approximately 75-100 feet into a 
trench located on park land. This trench drains into the Potomac. The 
U.S. Environmental Protection Agency (EPA) is the permitting agency for 
discharges that occur in the District of Columbia, and we understand 
that it is currently is in the process of reissuing permits for these 
three outfalls.
    The U.S. Park Police is investigating whether any discharge from 
the Corps facility has either substantially impaired park resources or 
violated Federal or District of Columbia law. This ongoing 
investigation was undertaken based on citizen complaints about odor and 
floating material.
    The C&O Canal National Historical Park presently does not issue any 
permits to the Corps for discharging on or under Federal property 
within the park boundary. Public Law 91- 664'the 1971 law that 
established the C&O Canal as a national historical park provided for 
utility rights-of-way. Section 5(a) of that law states: ``The enactment 
of this Act shall not affect adversely any valid rights heretofore 
existing, or any valid permits heretofore issued, within or relating to 
areas authorized for inclusion in the park.'' The Washington Aqueduct 
discharge lines were in place when the park was established. As we 
understand it, the Corps has employed such discharge practices since at 
least 1927. These discharges may predate establishment of the park and 
even the 1938 transfer of the land to the Federal Government by the 
Baltimore and Ohio Railroad.
    The National Park Service does not have jurisdiction over the 
waters of the Potomac River, although it does have jurisdiction over 
the river bed in the District of Columbia. Responsibility for managing 
Potomac River water quality lies with the EPA, the City of Washington, 
D.C., and the Maryland Department of the Environment. However, water 
quality is a major concern of the National Park Service. The National 
Park Service cooperates with the responsible agencies to enhance 
protection of the river's water quality and to protect its aquatic 
resources.
    Mr. Chairman, that concludes my prepared remarks. I would be 
pleased to answer any questions you or other committee members might 
have.
                                 ______
                                 
    Mr. Radanovich. Thank you.
    Dr. Hogarth.

 STATEMENT OF DR. WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR 
  FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL 
  OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF 
                   COMMERCE, WASHINGTON, D.C.

    Dr. Hogarth. Good morning, Mr. Chairman and members of the 
Subcommittee. Thank you for the opportunity to testify today on 
the status of the shortnose sturgeon in the Potomac River and 
the potential effects of the discharge from the Washington 
Aqueduct on its population and habitat.
    The shortnose sturgeon is anadromous, which means that it 
lives in the rivers and near-shore marine waters and migrates 
to fresh waters to spawn. The shortnose sturgeon was listed as 
endangered under the Endangered Species Preservation Act on 
March 11, 1967 and subsequently listed under the Endangered 
Species Act of 1973.
    National Marine Fisheries Service (NMFS) has the sole 
responsibility for protecting the shortnose sturgeon under the 
ESA. The Chesapeake Bay population segment includes any 
shortnose sturgeon that inhabits rivers that flow into the bay, 
including the Potomac River. There is no population estimate 
available for this population segment.
    Prior to 1996 there was limited data on the presence of 
shortnose sturgeon in the Potomac. Between 1996 and 2000, four 
shortnose sturgeon were captured in the upper and middle tidal 
Potomac River during a U.S. Fish and Wildlife Service reward 
program for Atlantic sturgeon. These sturgeon were captured in 
pound nets in the Potomac River between 55 and 123 miles 
downstream of the Washington Aqueduct discharge site. As of 
April 2001, an additional 42 shortnose sturgeon were captured 
via the reward program in other areas of the Chesapeake Bay but 
none in the Potomac River.
    While the evidence does not conclusively demonstrate that 
shortnose sturgeon are present in any area that could be 
adversely affected by the discharge, there is sufficient 
evidence to show that it is at least a possibility. Since the 
standard for determining whether ESA consultation is necessary 
is whether an agency's action may affect a listed species, NMFS 
believes it is in the best interest of the species to consider 
the evidence showing that shortnose sturgeon are present in the 
Potomac River basin and may be present in the action area.
    In addition, while we also have not documented the evidence 
of shortnose sturgeon spawning in the Potomac River, the 
habitat in the upper tidal Potomac River at Little Falls is 
consistent with the preferred shortnose sturgeon habitat in 
other river systems.
    While concerns about the effect of Washington Aqueduct's 
discharge on water quality, fish, and other aquatic life 
existed prior to 1996, the impacts to shortnose sturgeon 
specifically were not considered. The capture of shortnose 
sturgeon in 1996 during the Fish and Wildlife reward program 
represented new scientific evidence that had to be considered 
in ESA Section 7 consultations.
    Therefore, in 1998 NMFS worked with the U.S. Environmental 
Protection Agency and other Federal and state agencies to 
develop measures that would minimize the impacts of the 
sediment discharges to spawning, anadromous and resident fish 
in the short term. Specific recommendations were made for the 
operation of the Washington Aqueduct to minimize the adverse 
effects of sediment discharges on the spawning activities of 
anadromous fish and their habitat. Currently EPA and NMFS are 
in informal consultations regarding the effects of the 
Washington Aqueduct.
    The Army Corps of Engineers, operator of the Washington 
Aqueduct, funded a 3-year water quality study to assess the 
discharge and its effects. We understand a final report of this 
study has been issued. We have not yet received the final 
document. EPA will use the discharge study results and other 
relevant data to develop a biological assessment of the 
potential effects of the Washington Aqueduct on shortnose 
sturgeon. Once we receive this evaluation we will determine 
whether the proposed Federal action is likely to adversely 
affect shortnose sturgeon and other listed species. If so, 
formal consultation will be necessary and NMFS will have to 
prepare a biological opinion.
    To conclude, I look forward to working closely with 
Congress and the agencies for the protection of this species. 
Thank you for the opportunity to provide this testimony. And 
Mr. Chairman, due to a commitment at CEQ, I have to leave 
around 11:30, if that is no problem.
    [The prepared statement of Dr. Hogarth follows:]

  Statement of William T. Hogarth, Ph.D., Assistant Administrator for 
  Fisheries, National Marine Fisheries Service, National Oceanic and 
        Atmospheric Administration, U.S. Department of Commerce

    Good morning, Mr. Chairman and members of the Subcommittee. Thank 
you for the opportunity to testify today on the status of shortnose 
sturgeon in the Potomac River, and the effects of the discharge of 
sediment and pollutants from the Washington Aqueduct on its population 
and habitat.
Background
    The shortnose sturgeon is anadromous, which means that it lives in 
slow moving river waters or nearshore marine waters, but migrates 
periodically to fresher water to spawn. The shortnose sturgeon was 
listed as endangered under the Endangered Species Preservation Act on 
March 11, 1967, and subsequently listed under the Endangered Species 
Act (ESA) of 1973. NMFS has sole jurisdiction for protecting shortnose 
sturgeon under the ESA. The Chesapeake Bay population segment includes 
any shortnose sturgeon that inhabits rivers that flow into the Bay, 
including the Potomac River. There is no population estimate available 
for this population segment.
Occurrence in Potomac River
    Prior to 1996, the most recent documented evidence of shortnose 
sturgeon in the Potomac was from 1899, and the best available 
information suggested that the species was extirpated from the Potomac 
River. Between 1996 and 2000, four shortnose sturgeon were captured in 
the lower and middle tidal Potomac River during a U.S. Fish and 
Wildlife Service (USFWS) reward program for Atlantic sturgeon. These 
shortnose sturgeon were captured in pound nets in the Potomac River, 
between 55 and 123 miles downstream of the Washington Aqueduct 
discharge site near Little Falls. As of April 2001, an additional 42 
shortnose sturgeon were captured via the reward program in other areas 
of the Chesapeake Bay, but not near the Potomac River.
    In addition to the reward program for Atlantic sturgeon, the USFWS 
conducted two sampling studies between 1998 and 2000 in the Maryland 
waters of the Chesapeake Bay watershed to determine the occurrence of 
shortnose and Atlantic sturgeon in areas of proposed dredge-fill 
operations. One of these studies was a Potomac River sampling study for 
a Section 7 consultation on the U.S. Army Corps of Engineers' Potomac 
River Federal Navigation Project. Specific concerns about this project 
included the potential effects of proposed open water disposal of 
dredged material in the lower Potomac River on shortnose sturgeon. This 
study included a total of 4,590 fishing hours conducted at 5 sites in 
the middle Potomac River. These sites ranged from approximately 30 to 
74 miles downstream of the Washington Aqueduct discharge site. During 
this study, no shortnose sturgeon were captured at any of the 5 sites.
    As part of the Potomac River sampling study, at NMFS'' request, the 
USFWS also conducted an additional 77 hours of sampling at two other 
areas in the upper tidal Potomac River. This area, in the vicinity of 
Little Falls, Virginia, is near the best potential spawning habitat for 
shortnose sturgeon and the Aqueduct discharge site. No shortnose 
sturgeon were captured during 1998 and 1999 spring sampling in the 
vicinity of Little Falls.
    Taken altogether, the evidence does not conclusively demonstrate 
that shortnose sturgeon are present in any area that conceivably could 
be adversely affected by the discharges. On the other hand, there is 
sufficient evidence to show that it is at least a possibility. Since 
the standard for determining whether ESA consultation is necessary is 
whether an agency's action ``may affect'' a listed species, NMFS 
believes that it is in the best interest of the species to consider the 
evidence as showing that shortnose sturgeon are present in the Potomac 
River basin, and may be present in the action area. This is based on 
the documentation of shortnose sturgeon in the lower and middle tidal 
reaches of the Potomac River as well as the suitable habitat in this 
river system. Because sampling for shortnose sturgeon has been limited 
in the upper tidal reaches, NMFS does not have sufficient evidence to 
conclusively state that shortnose sturgeon are present or absent in 
this area. While we have no documented evidence of shortnose sturgeon 
spawning in the Potomac River, the habitat in the upper tidal Potomac 
River at Little Falls is consistent with the preferred shortnose 
sturgeon spawning habitat in other river systems.
Interagency Cooperation
    In 1998, NMFS worked with the U.S. Environmental Protection Agency 
(EPA) and other Federal and State agencies to develop measures that 
would minimize the impacts of the sediment discharges to spawning 
anadromous and resident fish in the short term. The agencies reviewed 
scientific literature and provided specific recommendations for the 
operation of the Washington Aqueduct to minimize the adverse effects of 
sediment discharges on the spawning activities of anadromous fish and 
their habitat.
Washington Aqueduct Section 7 Consultation History
    While concerns about the effect of the Washington Aqueduct's 
discharge on water quality, fish, and other aquatic life existed prior 
to 1996, the impacts to shortnose sturgeon specifically were not 
considered. The capture of shortnose sturgeon in 1996 during the USFWS 
reward program represented new scientific information that had to be 
considered in ESA section 7 consultations.
    EPA and NMFS are in informal consultation regarding the effects of 
the Washington Aqueduct. This is based on the recent documentation of 
shortnose sturgeon in the Chesapeake Bay and the Potomac River, the 
possibility of the Little Falls area as a spawning site, and our 
inability at this time to conclusively state whether a spawning 
population of shortnose sturgeon is present or absent in this area.
    The Army Corps of Engineers, operator of the Washington Aqueduct, 
funded a three-year water quality study to assess the discharge and its 
effects. We understand that a final report of this study has been 
issued but we have not yet received the final document. EPA will use 
the discharge study results and other relevant data to develop a 
biological assessment on the potential impacts of the Washington 
Aqueduct on shortnose sturgeon. Once NMFS receives this evaluation, 
NMFS will determine whether the proposed Federal action is likely to 
adversely affect shortnose sturgeon and other listed species. If so, 
formal consultation will be necessary and NMFS will prepare a 
biological opinion.
    To conclude, I look forward to working closely with Congress and 
other agencies for the protection of this species. Thank you for the 
opportunity to provide this testimony.
                                 ______
                                 
    Mr. Radanovich. We will see what we can do.
    Dr. Hogarth. Thank you.
    Mr. Radanovich. Ms. Gleason, welcome.

   STATEMENT OF PATRICIA GLEASON, CHIEF OF THE MARYLAND AND 
    DISTRICT OF COLUMBIA WATERSHED BRANCH, WATER PROTECTION 
   DIVISION, U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION 3, 
                        WASHINGTON, D.C.

    Ms. Gleason. Good morning, Mr. Chairman and members of the 
Committee. My name is Patricia Gleason and I am EPA branch 
chief in charge of the National Pollutant Discharge Elimination 
System or NPDES permitting in the District of Columbia. Thank 
you for your invitation to testify about the Washington 
Aqueduct.
    EPA issues NPDES permits in the District of Columbia. EPA 
is also responsible for the regulation of drinking water. We 
work to ensure that the Washington Aqueduct complies with all 
applicable drinking water regulations and all water discharge 
permit conditions.
    Finally, the Endangered Species Act requires the EPA to 
ensure actions are not likely to jeopardize the continued 
existence of Federally listed endangered or threatened species 
or adversely modify or destroy their critical habitat.
    Additional information about the typical NPDES permitting 
process is included in my written testimony but in the interest 
of time I would like to turn now to the specific permitting 
process for the Washington Aqueduct.
    In April 1989, EPA reissued NPDES permit number DC-10 to 
the Corps of Engineers for the Washington Aqueduct facility. 
This permit allows for the discharge to the Potomac River of 
residual solids from cleaning out sedimentation basins. 
Discharges are allowed only during high flow conditions. This 
permit had an expiration date of May 1994. The Corps applied 
for a new permit before the expiration date and by Federal law 
any permittee who timely applies to renew a permit is entitled 
to continue operating under that permit until a new one is 
issued. The permit required the Corps to study the potential 
toxicity of the discharge. That study was completed in February 
1993, concluding that there were no apparent water quality 
effects from the release of the discharges.
    In early 1995, EPA circulated a new draft permit which 
produced significant concern from both the Corps and its 
customers because it proposed new conditions setting limits on 
the concentrations of iron, aluminum and total suspended 
solids. This would have forced the construction of a residual 
solids facility.
    Late in 1995, Members of Congress requested EPA to delay 
the permit to give the parties a chance to build a new facility 
or develop an alternative plan, including a change in ownership 
and operations of the aqueduct. In April 1996 EPA agreed to 
delay the issuance of the permit and to work closely with the 
customer to resolve these issues.
    The Corps, EPA and the customers agreed on October 3, 1997 
that contractors would undertake a new study of the aqueduct's 
discharge. EPA believed this study, known as the discharge 
study, was necessary to establish a scientifically sound basis 
for any new requirements written into the reissued Washington 
Aqueduct permit.
    While the study was being developed, EPA also entered into 
an interagency agreement with the Fish and Wildlife Service in 
April 1998 to determine whether there were any cost-effective, 
short-term actions which the aqueduct could employ to avoid 
potential impacts to fish species that may migrate or spawn in 
the vicinity of the discharges. EPA convened a panel of 
fisheries biologists which provided recommendations on 
minimizing impacts to migratory fish in March 1999. Meanwhile, 
field work for the new discharge study began in August 1999 and 
was completed in May of 2001.
    The discharge study report was finalized on October 10, 
2001. Based upon the results of this study and other 
information available to EPA, it appears that the sediments 
have a negligible effect upon juvenile and adult fish in the 
Potomac River. In EPA's opinion, the studies show that the 
discharge is not acutely toxic and that the chronic toxicity 
tests, while not conclusive, seem to support the conclusion 
that the discharge is not currently affecting juvenile and 
adult fish. The study did suggest a potential risk of 
smothering fish eggs and larvae if they are in the river at the 
time of the discharge.
    Based upon the concerns of National Marine Fisheries 
Service about the possible presence of shortnose sturgeon and 
the fisheries panel that the discharge may have a smothering 
effect on early life stages of fish and in light of our on-
going Section 7 consultation about the sturgeon, EPA is 
considering preparing a draft permit that will be beyond the 
present permit requirements to protect the river and its living 
resources. EPA is now preparing a draft permit which will be 
submitted for public comment by the end of this calendar year.
    In addition, as is normal practice, EPA will also consult 
with the District of Columbia to assure that the new permit 
meets water quality standards. We will continue consulting with 
Fish and Wildlife Service and National Marine Fisheries to 
ensure that endangered species and habitat are protected and 
the requirements of the ESA and the Clean Water Act are met. 
EPA expects to issue the final permit next spring.
    I would like to thank the members of this Committee for 
inviting me to speak here today and I would be happy to answer 
any of your questions. Thank you.
    [The prepared statement of Ms. Gleason follows:]

Statement of Patricia Gleason, Chief, Maryland and District of Columbia 
    Watershed Branch, Water Protection Division, U.S. Environmental 
                      Protection Agency, Region 3

INTRODUCTION
    Good morning, Mr. Chairman and members of the Committee. My name is 
Patricia Gleason, and I am the Director of the Water Protection 
Division at the U.S. Environmental Protection Agency Mid Atlantic 
Regional Office in Philadelphia. I thank you for your invitation to 
testify about EPA's NPDES permitting process and how that process 
applies to the operation of the Washington Aqueduct.
EPA's ROLE
    In accordance with the provisions of the Clean Water Act (CWA), EPA 
is the permitting authority responsible for issuing NPDES permits in 
the District of Columbia. In addition to its NPDES permit authority, 
EPA is also responsible for the regulation of drinking water. EPA works 
closely with the Washington Aqueduct and its wholesale customers, the 
District of Columbia Water and Sewer Authority, Arlington County and 
Falls Church, Virginia, to insure that the Aqueduct and its customers 
comply with all applicable drinking water responsibilities and that 
they provide their individual customers with high quality drinking 
water. Finally, the Endangered Species Act (ESA) requires the EPA to 
utilize its authorities to carry out programs for the conservation of 
endangered and threatened species. Enacted to provide for the 
conservation of the ecosystems upon which endangered and threatened 
species depend, the ESA complements EPA's CWA authorities to restore 
and maintain the biological integrity of the Nation's waters.
    In general, EPA follows the following procedures when it issues an 
NPDES permit. After EPA receives the permittee's application for an 
NPDES permit (or in this case an application for renewal of the 
permit), EPA begins work on a draft permit. A major part of this work 
is preparing limits for the discharge of pollutants by the permittee. 
Permit limits are based on both technology requirements and water 
quality impacts, and they set conditions on the pollutants to be 
discharged, such as restrictions on the mass and/or concentration of 
the pollutants, timing of the discharge, and monitoring requirements. 
EPA also puts in the draft general conditions that must be in any NPDES 
permit. At the same time EPA prepares the draft permit, it also 
prepares a fact sheet (a detailed explanation of the permit and its 
terms) or a statement of basis (a less detailed explanation). Prior to 
sending the permit out for public comment, EPA will send a draft 
version of the permit to the appropriate State agency for certification 
that the draft permit will be protective of the state's water quality 
standards. In addition, the Region often discusses possible provisions 
of the draft permit with Federal and State agencies before it completes 
the draft permit. This provides essential information to the Region 
which it uses to formulate well considered draft permits.
    After EPA has completed the draft permit, the Agency sends out a 
notice of its intent to issue the permit with the conditions set out in 
the draft permit. The notice also includes a solicitation of comments 
on the draft permit and the necessary information to request a hearing 
on the draft permit. EPA sends the notice to, among others, the 
permittee; other Federal agencies, including the Fish and Wildlife 
Service (FWS) and National Marine Fisheries Service (NMFS); state 
agencies with responsibility over fish, shellfish and wildlife in the 
state; and persons who are on a mailing list EPA maintains of 
individuals who have expressed an interest in NPDES permits. EPA's 
NPDES regulations note EPA's obligation to comply with the ESA as well 
as the possibility that EPA may impose conditions based upon comments 
from FWS or NMFS. Notice of the draft permit is also published in a 
daily or weekly newspaper within the area affected by the discharge. 
Anyone may ask for a copy of the permit, the fact sheet (or statement 
of basis) and at the same time request a public hearing. Depending upon 
the interest in the permit, EPA may hold a public hearing to take 
comments on the draft permit.
    After the public comment period is closed, EPA reviews the comments 
and prepares a document responding to the comments. At the same time, 
the Agency prepares a final permit, making any changes that are needed 
to respond to the public comments. EPA then issues the permit and sends 
a notice to anyone who sent in comments on the draft permit that the 
Agency has taken this action.
    In taking any action to issue a permit, EPA must comply with the 
applicable requirements in section 7 of the Endangered Species Act 
(ESA) and 50 C.F.R. Sec. Part 402. Under section 7, EPA must ensure, in 
consultation with the FWS and NMFS, that issuance of the permit is not 
likely to jeopardize the continued existence of any listed threatened 
or endangered species or result in the destruction or adverse 
modification of designated critical habitats. EPA has recently entered 
into a Memorandum of Agreement with the Fish and Wildlife Service and 
National Marine Fisheries Service that describes the process that the 
agencies will follow in consulting on NPDES permits. This process, 
which tracks the requirements in 50 C.F.R. Part 402, includes a 
determination by EPA whether the permitted activity may affect a listed 
species and the need for informal or formal consultation. Based on the 
consultation, EPA imposes any permit conditions needed to ensure that 
the discharge is not likely to jeopardize the continued existence of a 
listed species or result in the destruction or adverse modification of 
designated critical habitat. Should the Service(s) anticipate 
incidental take of listed species, EPA also considers changes to the 
permit required by the Service(s) for incidental take to be authorized.
    Any person who participated in the permit-issuance process is 
entitled to appeal a final permit to an administrative body at EPA, the 
Environmental Appeals Board, which can review whether the permit is 
based on a finding of fact or conclusion of law which is clearly 
erroneous, including a claim that the permit fails to comply with the 
ESA.
    The U.S. Army Corps of Engineers (COE) owns and operates the 
Washington Aqueduct facility. The functions of the facility include the 
collection, purification, and pumping of an adequate supply of clean 
water for the District of Columbia, Arlington County (VA), and the City 
of Falls Church (VA). The Washington Aqueduct provides the water supply 
for approximately one million residents of the District of Columbia and 
Northern Virginia. The area residents receive water through 
distribution systems owned and operated by the Water and Sewer 
Authority or WASA (for the District of Columbia), Arlington County, and 
the City of Falls Church (the ``Customers''). Water distribution is the 
responsibility of the Customers.
    On April 3, 1989, EPA reissued NPDES Permit No. DC 0000019 to the 
COE for the Washington Aqueduct facility, effective date May 3, 1989. 
(EPA had previously issued this permit in 1983.) This NPDES permit 
allows for the discharge of residual solids from cleaning out the 
sedimentation basins used in water treatment to the Potomac River. 
Discharges to the Potomac are allowed only during high flow conditions. 
During these high flow events, the Potomac River contains a large 
quantity of solids. The Aqueduct's discharge represents less than 
twenty percent of the annual total river load of solids. The permit 
does not require any treatment of the discharge.
    The present permit contains monitoring requirements but no specific 
effluent limits on Total Suspended Solids, Total Aluminum, Total Iron, 
and Flow in the permit. The permit does prohibit the discharge of 
floating solids or visible foam. The permit also requires the COE to 
meet a pH level of not less than 6.0 standard units nor greater than 
8.5 standard units. The COE must take monitoring samples at the time of 
discharge. Samples are taken of pH, Total Suspended Solids, Total 
Aluminum, Total Iron, and Flow. These samples provide EPA a 
representation of the discharge's volume and nature. The COE reports 
its monitoring results to EPA on Discharge Monitoring Reports.
    This permit had an expiration date of May 2, 1994. The COE applied 
for a new permit before the expiration date, and under 5 U.S.C. 
Sec. 558(c) and 40 C.F.R. Sec. 122.6(a), the prior permit continues in 
effect by operation of law pending EPA's decision to issue a new 
permit.
    The NPDES permit required COE to conduct several studies on the 
toxicity of the discharge. The COE's contractor completed the initial 
studies and issued a report in February 1993. This report concluded 
that there were no apparent water quality effects from the release of 
the discharges.
    In early 1995, EPA prepared a draft permit for comment. A copy of 
the permit was sent to the District of Columbia and the COE. In 
February 1995 significant concern arose from the Customers and COE 
because of the proposed new conditions in the draft permit. The new 
conditions would have set limits on the concentrations of iron, 
aluminum and total suspended solids from the Aqueduct's discharge. This 
would have forced the construction and use of a residual recovery 
facility. The Customers expressed concern about the cost of such a 
facility. One issue for them was their ability to provide the lowest 
possible capital and operating costs for the Aqueduct users. Both the 
COE and the Customers also questioned the environmental necessity of a 
recovery facility.
    Late in 1995, Members of Congress requested EPA to delay the 
issuance of the permit to give the various parties involved a chance to 
build a new facility or develop an alternate plan including a change in 
the ownership and operations of the Aqueduct. As a result, in April 
1996 EPA agreed to delay the issuance of the permit to provide time to 
explore the feasibility of turning over the operations of the Aqueduct 
to another operator. EPA also agreed to work closely with the Customers 
to resolve the issues.
    On August 6, 1996, the Safe Drinking Water Act Amendments of 1996 
(Public Law 104-182) became effective. Section 306 of the Amendments 
outlined a plan for the future operations of the Aqueduct. Congress 
encouraged the establishment of a non-Federal entity to take over the 
operations of the Aqueduct. Section 306 also required that, before 
reissuing the NPDES permit, EPA must consult with the Customers 
``regarding opportunities for more efficient water facility 
configurations that might be achieved through various possible 
transfers of the Washington Aqueduct. Such consultation shall include 
specific consideration of concerns regarding a proposed solids recovery 
facility, and may include a public hearing.
    After discussions among the COE, EPA, and the Customers, these 
parties agreed on October 3, 1997, that contractors for the Customers 
would undertake a new study of the water quality effects of the 
Aqueduct's discharge and would address issues raised by EPA 
(``Discharge Study''). The parties agreed that the Discharge Study 
would include six parts: an effluent dilution and fate study, where a 
computer simulates river flow and the suspended solid's plume to 
determine acute and chronic dilution factors as a function of effluent 
loading and river flow; effluent toxicity testing to determine the 
toxicity of discharges to freshwater species; effluent chemical 
characterization, using existing effluent discharge data to calculate 
preliminary projections of receiving water concentrations in comparison 
to water quality criteria; an analysis of the Potomac's fishery to 
determine the effect of the discharge upon key anadromous and resident 
fish species; an analysis of the Potomac's macroinvertebrate community 
to characterize the community prior to and after discharge; and an 
analysis of a modification of the aluminum criteria in the event the 
other parts of the Aqueduct Study show that this would be desirable. 
Recognizing the potential that new effluent limits and special 
conditions in a revised NPDES permit could mandate the expenditure of 
large amounts of public funds, EPA believed this study was necessary to 
establish a scientifically sound basis for any new requirements written 
into the reissued Washington Aqueduct permit.
    While the study was being developed, EPA entered into an 
Interagency Agreement (IAG) with FWS in April 1998 for assistance in 
developing discharge guidelines for the Washington Aqueduct sediments. 
The purpose of this work was to determine whether or not there were any 
cost effective, short term remedies which the Washington Aqueduct could 
employ to avoid potential impacts to fish species that may migrate or 
spawn in the Potomac River in the vicinity of the Aqueduct discharges. 
In order to perform this work, EPA convened a panel of fisheries 
biologists from the District of Columbia, National Marine Fisheries 
Service, State of Maryland, FWS and the Interstate Commission on the 
Potomac River Basin (1998 Fisheries Panel) to provide recommendations 
on minimizing impacts to migratory fish from sediment discharges at the 
Aqueduct.
    In March of 1999, the FWS submitted, in a report to EPA, the 
results of the 1998 Fisheries Panel's study and recommendations. EPA 
has discussed the results of the report with the COE. One 
recommendation by the Panel was that there should be no discharge in 
the Spring when anadromous fish spawn. This recommendation is difficult 
for the COE to implement because Springtime is often the only time 
during the year when high flow conditions are present in the Potomac 
and the COE cannot predict if it will be able to discharge later in the 
year. As stated earlier, the NPDES Permit limits the Aqueduct's 
discharge to high flow conditions.
    On June 24, 1999, EPA approved the study plan for the Discharge 
Study. At EPA's request, staff from the Fish and Wildlife Service's 
(``FWS'') Environmental Contaminants Branch from the Chesapeake Bay 
Office assisted EPA in the initial planning for the Discharge Study. 
EPA discussed the study plan with the FWS prior to approving it. The 
Discharge Study was performed by scientists at EA Engineering, Science 
& Technology, Inc. under contract to the Metropolitan Washington 
Council of Governments on behalf of the Customers.
    Besides assisting EPA with the planning of the Discharge Study, 
FWS' Environmental Contaminants Branch has assisted in the review and 
interpretation of data generated by the Discharge Study. In addition, 
at the request of several citizen groups, FWS has participated with EPA 
in public meetings and informational sessions, most notably in the 
Spring of 2000 and on October 10, 2001. EPA was at both meetings to 
explain the techniques used during the collection of environmental data 
for the Discharge Study. EPA has reviewed the raw data which resulted 
from the effluent toxicity testing part of the Discharge Study and 
committed resources to review the draft Discharge Study and to follow 
through, as necessary, to explain the results of the Discharge Study to 
the public.
    Field work for the studies began in August of 1999 and they were 
finally completed in May of 2001. The Discharge Study Report was 
finalized by October 10, 2001. Based upon the results of the study and 
other information available to EPA, it appears that the sediments have 
a negligible effect upon juvenile and adult fish in the Potomac River. 
In EPA's opinion, the acute toxicity studies showed that the discharge 
is not acutely toxic and the chronic toxicity tests, while not 
conclusive, seemed to support the conclusion that the discharge is not 
currently affecting juvenile and adult fish. The study did suggest a 
potential risk of smothering fish eggs and larvae if they are in the 
river at the time of the discharge.
    Based on NMFS's continued concern about the presence of shortnosed 
sturgeon, and the Fisheries Panel's similar concern that the discharge 
may have a smothering effect on early life stages of fish, and in light 
of our ongoing section 7 consultation about the sturgeon, EPA is 
considering preparing a draft permit that will be beyond the present 
permit requirements to protect the river and its living resources.
    With the recommendations of the FWS panel and the completion of the 
Discharge Study, EPA is now in a position to prepare a draft NPDES 
permit. EPA anticipates that a draft permit will be submitted for 
public comment by the end of calendar year 2001. This is an important 
part of the permitting process because it allows the public to express 
their opinion regarding the acceptability of the permit. In addition, 
as is its normal practice, EPA will also consult with the DC Department 
of Health to assure that the new permit meets DC Water Quality 
Standards. We will continue consulting with US Fish and Wildlife 
Service and National Marine Fisheries Service to ensure that endangered 
species and habitat are protected. In addition, since that State of 
Maryland and the Commonwealth of Virginia share the waters of the 
Potomac with the District of Columbia, they too will be provided the 
opportunity to comment on the draft permit. After reviewing the 
comments, EPA will then prepare a response to the comments and issue 
the final permit. The length of time it will take to issue a final 
permit depends on a number of factors, including the number and content 
of public comments received, and results of Congressionally mandated 
consultation with the Customers. At this time, EPA would expect to be 
in a position to issue the final permit in the Spring 2002.
    As described above, EPA consults with the Service(s) whenever 
discharges under an NPDES may affect a listed species. EPA has 
discussed with the FWS and NMFS whether listed species, including the 
shortnose sturgeon, are present in areas potentially impacted by 
discharges from the Aqueduct. EPA is engaged in informal consultation 
with the FWS regarding potential effects, if any, on listed species. 
The shortnose sturgeon is under the jurisdiction of NMFS, which is the 
expert agency with regard to this species. According to NMFS, there are 
no data documenting the presence of sturgeon in waters affected by the 
discharge, although the presence of shortnose sturgeon has been 
documented in the lower and middle tidal reaches of the Potomac River 
and the habitat in the upper tidal Potomac River at Little Falls is 
similar to shortnose sturgeon spawning habitat in other river systems. 
Because sampling for shortnose sturgeon has been limited to 77 hours of 
sampling in two areas in the upper tidal reaches, additional data 
gathering would be necessary to conclusively prove its presence or 
absence. While EPA is not required to consult on an action that will 
have no effect on listed species, EPA and NMFS are taking a 
conservative approach and are currently engaged in informal 
consultation regarding the sturgeon. EPA will complete this process in 
accordance with the consultation procedures in the Service regulations 
and include any permit conditions needed to ensure compliance with the 
requirements of section 7 of the Endangered Species Act. In addition 
the Agencies have held telephone conversations discussing the steps 
that they would take to deal with the possibility that the reissuance 
of the NPDES Permit might affect these species.
    In sum, I would characterize our status at this point in reissuing 
the Aqueduct's permit as gathering information, including the 
information shared as a result of our consultations with the Services, 
so that we can prepare a draft permit that meets the requirements of 
the ESA and the CWA. I would like to thank the members of this 
committee for inviting me to speak here today. Since these matters have 
been the subject of litigation, for the past year a significant amount 
of speculative information has been circulated. I appreciate the 
opportunity to appear before you to explain the current status of this 
important matter. Thank you.
                                 ______
                                 
    Mr. Radanovich. Thank you very much.
    Col. Fiala, thank you and welcome.

   STATEMENT OF COLONEL CHARLES J. FIALA, JR., COMMANDER AND 
   DISTRICT ENGINEER, BALTIMORE DISTRICT, U.S. ARMY CORPS OF 
                 ENGINEERS, BALTIMORE, MARYLAND

    Col. Fiala. Thank you, Mr. Chairman, members of the 
Committee. I appreciate the opportunity to testify this 
morning. I am Colonel Charles J. Fiala, Jr., commander and 
district engineer of the Baltimore District Corps of Engineers, 
United States Army.
    The Baltimore District has a long and distinguished history 
of service to the nation, the region and the city. Members of 
my 1,200-person staff continue to support recovery operations 
at the World Trade Center and at the Pentagon. For more than 
two decades the Baltimore District has been in the forefront of 
environmental restoration in the Chesapeake Bay, including 
projects that have provided improved water quality and habitat 
in the Potomac, Anacostia and Susquehanna Rivers.
    You asked me to provide information on the legally 
permitted discharges of the Washington Aqueduct, a division of 
the Baltimore District. I would first like to summarize the 
major role the aqueduct plays in supporting our nation's 
capital and the surrounding areas, then respond to the issues 
raised by your invitation.
    In 1853, at the direction of Congress, the Corps began 
construction of the aqueduct. We have supplied water to the 
District of Columbia since 1859. Many of the original 
structures from the 1850's are still in operation and many 
others date back to the 1920's. Most of the real estate 
supporting the aqueduct's mission and current treatment 
processes were acquired and functioning decades before the C&O 
Canal became a national park.
    Today the aqueduct provides all water supplied to 
Washington, D.C., Arlington County, Virginia and the City of 
Falls Church, Virginia. This area is home to many agencies that 
support the administration and the defense of this country, 
including the very building we are meeting today; in fact, the 
water we have sitting out here today.
    For example, the aqueduct supplied water used to fight 
fires at the Pentagon on 11 September. Providing high-quality, 
safe and affordable water to approximately 1 million customers 
in these areas, particularly in light of the 11 September 
attacks on our country, is one of our highest priorities.
    The aqueduct is a unique Federal institution in that it 
operates like a business. It gets its operational and capital 
improvement funds from the fees it charges its customers for 
the water it supplies. It is regulated by the Safe Drinking 
Water and Clean Water Acts and takes its compliance 
responsibilities seriously. It operates in accordance with the 
National Pollutant Discharge Elimination System permits issued 
to it by both the State of Maryland and the Environmental 
Protection Agency. These permits allow the aqueduct to make 
routine discharges from sediment basins and infrequently 
maintained-related discharges.
    All water treated by the aqueduct comes from the Potomac 
River that naturally transports a very large sediment volume. 
Treatment involves a three-step process that includes sediment, 
filtration, and disinfection. In the case of the aqueduct, 
sediment removal begins in an initial sediment basin, then 
occurs more actively in six large basins with the aid of a 
coagulant, aluminum sulfate, that is typically used in the 
water production industry.
    Periodically these six sedimentation basins must be cleaned 
of the sediment build-up. Their contents, which include raw or 
river water, the accumulated sediments, and the accumulated 
coagulant, are flushed into the Potomac River, in keeping with 
the terms of the EPA discharge permit. We estimate that 95 
percent of the sediments discharged from naturally occurring 
sediment from the river and 5 percent of the solids are due to 
the coagulant. The volume of the solids discharged to the 
Potomac River from the six basins is only about one-half of the 
total volume of solids removed from the water, taken from the 
river. At a maximum, it represents less than 1 percent of the 
solids in the river flow during the discharge period.
    With respect to the nonroutine discharges for plant 
maintenance, the State of Maryland permits the aqueduct to 
discharge raw water--that is, untreated water--into the streams 
and on lands across park property. EPA has also issued the 
aqueduct a permit that allows discharge of raw water dosed with 
coagulant if maintenance is required on a major conduit. The 
path of this discharge is open and crosses the park property. 
Discharges of this nature seldom occur, once every 2 years for 
approximately 6 hours.
    Two other discharges are allowed under this permit. One is 
the ground drain water from under the sediment basins. That 
water goes directly to the Potomac River. The other is a drain 
water from a large conduit to Rock Creek. That discharge might 
occur only once in 10 years and involve sediment-free, clear, 
unchlorinated water.
    All of our discharge points or outfalls are properly 
regulated and comply with Federal and state permits. At this 
time there are no known effects from these discharges on the 
C&O Canal Historic Park property.
    The next issue you asked me to discuss is the impact of 
sediment discharges, if any, on the shortnose sturgeon. As you 
are aware, that particular question is subject to current 
litigation brought on by the National Wilderness Institute 
against several of the Federal agencies testifying here today. 
In accordance with the Endangered Species Act, consultation 
among Federal agencies regarding the shortnose sturgeon is on-
going at this time.
    I can mention that at the request and direction of the EPA, 
we contracted for two significant scientific efforts to study 
the impacts, if any, of sediment discharges upon aquatic life 
of the Potomac River. Based on the study plan coordinated with 
Fish and Wildlife, approved by the EPA Region 5 and performed 
in accordance with accepted scientific procedures and analysis, 
the most recent study was just completed and sent to these 
agencies. EPA is now determining whether to reissue the 
aqueduct's current permit for the sediment discharges. 
Meanwhile we continue to work with the EPA and our other 
Federal parties to do what is best for the environment and 
ensure the availability and safety of the drinking water we 
supply this region.
    Again I thank you for this opportunity to be here this 
morning to apprise the Subcommittee about the operations of the 
Washington Aqueduct and I will respond to your questions.
    [The prepared statement of Col. Fiala follows:]

  Statement of Colonel Charles J. Fiala, Jr., Commander and District 
       Engineer, Baltimore District, U.S. Army Corps of Engineers

    Mr. Chairman and members of the subcommittee, thank you for 
inviting me to testify before you today. I am Colonel Charles J. Fiala, 
Jr., the Commander and District Engineer of the Baltimore District, 
United States Army Corps of Engineers.
    You invited me here today to provide information regarding the 
legally permitted discharges of the Washington Aqueduct, which is a 
division within the Baltimore District. I would like to provide a brief 
background of the significant role the Washington Aqueduct plays in 
support of our nation's capital and the surrounding areas and then 
respond to the issues raised in your invitation.
    At the direction of Congress in 1853, the United States Army Corps 
of Engineers began construction of the water delivery system that is 
today known and operated as the Washington Aqueduct. The United States 
Army Corps of Engineers has continuously supplied water for drinking, 
fire protection, and a host of other purposes to the City of Washington 
and the District of Columbia since 1859. Many of the original 
structures from the 1850s are still in operation and many others date 
back to the 1920s. Consequently, many of the real estate interests 
acquired to support the Aqueduct's mission and the treatment processes 
currently used by the Aqueduct were acquired and functioning decades 
before the C&O Canal National Historic Park became a national park.
    Today, we own and operate wholesale water production facilities 
that provide all of the water supplied to Washington, D.C., Arlington 
County, Virginia, and the City of Falls Church, Virginia, an area home 
to numerous agencies which support the administration and defense of 
this country including the very building we are meeting in today. By 
way of example, the Washington Aqueduct supplied the water used to 
fight the fires at the Pentagon on September 11, as it would for any 
fire in any one of these three jurisdictions. Providing high quality, 
safe, and affordable water to the approximately one million consumers 
in these areas, particularly in light of the September 11 attack on 
this country, is one of my highest priorities.
    The Washington Aqueduct's manager works under my general 
supervision. The Washington Aqueduct is a unique Federal institution. 
While much of the Federal Government is totally or largely dependent 
upon congressional appropriations, the Washington Aqueduct operates as 
a business. It receives the funds it needs to operate by way of the 
fees it charges its three local government customers for the water it 
supplies. Capital improvements are also funded by the customers. At the 
same time, like all of the other drinking water production facilities, 
the Washington Aqueduct is regulated by the terms of the Safe Drinking 
Water Act and the Clean Water Act. The Washington Aqueduct takes its 
compliance responsibilities seriously. It operates in accordance with 
the National Pollutant Discharge Elimination System (NPDES) permits 
issued to it by both the State of Maryland and by Region 3 of the 
Environmental Protection Agency (EPA).
    To respond to the issues you raise, let me clearly state that all 
water treated by the Washington Aqueduct comes from the Potomac River 
and that approximately 95% of the sediments the Washington Aqueduct 
discharges back into the Potomac River are Potomac River sediment. 
Treatment is a three-step process that includes sedimentation, 
filtration, and disinfection. The large volume of sediment that is 
naturally transported by the Potomac River and drawn into the treatment 
process must be removed. In the case of the Washington Aqueduct, 
sediment removal begins in an initial settlement basin, then occurs 
more actively in six large basins with the aid of a coagulant. The 
coagulant currently used by the Washington Aqueduct is aluminum 
sulfate. This is typical of the water industry.
    Periodically, these six sedimentation basins must be cleaned of the 
sediment build-up. When that occurs, the contents, which include raw 
water, i.e. river water, the accumulated sediments, and the accumulated 
coagulant, are flushed to the Potomac River in accordance with the 
terms of the NPDES permit issued by EPA Region 3. Approximately 95 
percent of the sediments discharged are naturally occurring sediment 
transported by the river before the water was drawn into the treatment 
process. We estimate that about five percent of the solids of any 
discharge are attributable to the coagulant. At the last stage of the 
basin cleaning, some finished water (i.e. drinking water) is used in 
fire hoses to flush out the last of the sediments. That drinking water 
does contain chlorine, but the physical action of the water on the 
walls and bottom of the basin volatizes some of that chlorine. The 
remaining chlorine content of the drinking water used for this purpose 
reacts with the sediment effectively using up all free chlorine 
potential.
    To put the discharges into perspective, the current permit allows 
discharge only when the flow of the Potomac exceeds 3.5 billion gallons 
per day. Normally a discharge event from one of the sedimentation 
basins will be completed in a 24-hour period. From the most often 
drained basins, the volume of the discharge would be in the range of 12 
to 18 million gallons, which as a maximum is about one percent of the 
flow of the river during that 24-hour period. The volume of solids 
discharged to the Potomac River from the six sedimentation basins is 
only about one half of the total volume of solids that were removed 
from the water taken from the River. That other half remains in the 
initial sedimentation basin which acts as a pre-sedimentation basin 
before the raw water is dosed with a coagulant in the formal treatment 
process.
    With respect to the C&O Canal National Historic Park, the 
Washington Aqueduct, in accordance with EPA and State of Maryland 
permits, conducts two types of discharges. They are the just-described 
routine sedimentation basin discharges that occur approximately 16 to 
20 times a year and infrequent discharges of raw or partially treated 
water to allow for maintenance of Washington Aqueduct infrastructure.
    The routine water treatment solids, i.e., sediment, discharges use 
three conduits to get those solids to the Potomac River. One of those 
conduits is a closed pipe that runs underground through the Park's 
property and discharges into the Potomac River approximately 12 to 16 
times per year. A typical discharge lasts 12 hours. These discharges 
are in accordance with the EPA NPDES permit. At the point of discharge, 
the sediment enters the Potomac River below water level from a concrete 
structure slightly offshore. No sediment is deposited within the C&O 
Canal National Historic Park at that location.
    The other two conduits discharge onto Park property approximately 
75'' from the shore of the Potomac River and follow a channel into the 
River. These discharges are also in accordance with the EPA NPDES 
permit and occur approximately 4 to 6 times per year for approximately 
12 to 18 hours. The closed discharge pipes at those locations run 
underground from the sedimentation basins and end in a headwall about 
50 to 75 feet from the river. A small channel a few inches deep at each 
location extends from the headwall, traveling perpendicular to the 
river, and transports the liquid and the solids until they enter the 
River and are mixed and carried downstream. During a discharge, the 
sediment is confined to that channel and does not otherwise affect the 
surrounding land. There is no build- up of residue from the sediment 
discharges on Park land.
    With respect to the non-routine discharges to accomplish plant 
maintenance, the State of Maryland, under a Maryland General Discharge 
Permit, allows the Washington Aqueduct to discharge raw water into 
streams and on lands which cross Park property. These discharges are 
infrequent, approximately once a year. In only one location where 
infrequent discharge occurs is there the potential for chlorinated 
water to leave the Washington Aqueduct treatment plant and enter the 
waters of the State of Maryland. This may occur approximately 5 to 6 
times per year for a few hours at a time. In that instance, a 
dechlorination station is used to properly dechlorinate the water 
before it leaves the treatment plant.
    EPA has also issued Washington Aqueduct an NPDES Permit (DC0000329) 
that allows discharge of raw water dosed with coagulant should 
maintenance be required on a major conduit. The path of this discharge 
is open and crosses Park property. Discharges of this nature occur 
infrequently, approximately once every two years, for approximately six 
hours. There are two other points allowed under this permit. One is to 
drain ground water from under sedimentation basins. That water goes 
directly to the Potomac River. The other is to drain water from another 
large conduit to Rock Creek. That discharge might occur only once in 10 
years and would be clear unchlorinated water.
    All of our discharge points or outfalls are properly regulated by 
and comply with NPDES permits. Where other private or public properties 
are crossed, proper land usage rights have been obtained.
    At this time, there are no known adverse effects on C&O Canal 
National Historic Park property as a result of these discharges.
    The next issue associated with the Washington Aqueduct's sediment 
discharges that the committee has asked me to discuss is the impact of 
the discharges, if any, upon the shortnose sturgeon. That particular 
question is the subject of current litigation brought by the National 
Wilderness Institute against a number of the Federal agencies 
testifying here today. My testimony is therefore somewhat constrained 
so as not to compromise the Government's ability to present a sound 
defense in this litigation. In accordance with the Endangered Species 
Act, consultation among the Federal agencies regarding the shortnose 
sturgeon is ongoing at this time.
    At the request and direction of the Environmental Protection 
Agency, the United States Army Corps of Engineers contracted for two 
significant scientific efforts to study the impacts, if any, of the 
sediment discharges upon the aquatic life of the Potomac River. The 
first effort was a study completed by Dynamac Corporation in 1993. This 
report concluded that there were no apparent water quality effects from 
the release of the discharges. The second effort, based upon a study 
plan coordinated with the United States Fish and Wildlife Service and 
approved by EPA Region 3, was a study conducted by EA Engineering, 
Science, and Technology, Inc., which has just been completed. 
Washington Aqueduct provided the report for that study to EPA Region 3 
on October 5. This report is based upon accepted scientific procedure 
and analysis. Based upon the results of the study and other information 
available to EPA, it appears to us at the Corps that the sediments have 
a negligible effect upon the Potomac River. The executive summary from 
the report is attached as an exhibit to my testimony. EPA is in the 
process of determining whether to reissue the Washington Aqueduct's 
current NPDES permit for the sediment discharges, and, if so, under 
what conditions.
    In conclusion, the United States Army Corps of Engineers continues 
to work closely with the EPA and all of our other Federal agency 
partners both to do what is best both for the environment and to ensure 
the availability and safety of the drinking water we supply to this 
region.
    Again I thank you for the opportunity to be here this morning to 
apprise the subcommittee of the operations of the Washington to 
Aqueduct and to respond to your questions.
                                 ______
                                 
    Mr. Radanovich. Thank you, Col. Fiala.
    Mr. Gordon.

    STATEMENT OF ROB GORDON, DIRECTOR, NATIONAL WILDERNESS 
                INSTITUTE, ALEXANDRIA, VIRGINIA

    Mr. Gordon. Thank you, Mr. Chairman, Committee members. 
Thank you for holding this hearing to investigate the damage 
done to the flora, fauna and habitat and the natural and 
cultural values of the C&O National Park from the Washington 
Aqueduct's discharges.
    Mr. Chairman, you have seen the massive black plume and 
tons of chemically treated sludge seep down the Potomac. 
According to the Corps, it is the equivalent of dumping 15 
dump-trucks a day into the Potomac.
    Mr. Radanovich. Mr. Gordon, I hate to be in the practice of 
interrupting opening statements but I just wanted to draw 
people's attention to the picture over there. The light brown 
color is the high water turbidity, normal turbidity of the 
Potomac River. Especially after rains, you will notice how it 
is. The black plume down there is the actual discharge of 
sediment from the basins into the river. That is black sludge 
there.
    I believe we have little packets on your desk there that 
shows you exactly. We do not have enough for every member; I am 
sorry, but that is what the sludge looks like and that is the 
contrast of it happening in the Potomac River there near the 
C&O Canal.
    The other picture there is a nighttime picture of the foam. 
There is a green stick in the water there; that is an oar and 
that is rowing through the sludge as it is being dumped into 
the river at nighttime. Then the other picture to the right 
there is the foam on the Potomac River after the dumping the 
night before.
    So in reference to the plume and the effect of it on the 
Potomac, those are visual examples of what is going on there. 
Thank you.
    Mr. Gordon. Do I get an extra minute?
    Mr. Radanovich. Yes, you get an extra minute.
    Mr. Gordon. According to the Corps, the dumping that you 
have just seen the photographs of is the equivalent of 15 dump-
trucks a day into the Potomac. The Park Service would never 
tolerate this in Yosemite or Yellowstone.
    As recently as August, the Corps discharged into Little 
Falls Branch with chlorine levels that exceeded Maryland's 
limit by five times, a limit below which chlorine is used to 
kill aquatic life that might otherwise grow in nuclear power 
plant cooling water intakes.
    Rather than fix these problems, you are hearing today from 
agencies that defend the practice, stating that what you are 
seeing is not really what you are seeing and that the standards 
somehow do not apply here and that although they have had 
studies, draft permits, hearings and more studies and another 
draft permit, you should trust that they will work it out, even 
though the dumping really is not bad or getting any special 
treatment.
    The Corps has stated that the sludge is from the river and 
includes a little alum. Little means 10,000 tons, almost three 
10-ton dump-trucks a day all year long. How long would it take 
for the average American to be indicted, convicted and 
imprisoned for dumping just one dump-truck of alum into a pond 
outside the Beltway?
    The Corps discussed diverting its sludge to a D.C. sewage 
facility 30 years ago and its 1989 permit called for provisions 
for a sludge-handling system. A later EPA consent order 
required design work for a dewatering facility so sludge could 
be hauled off-site, and EPA draft permits had limits that would 
have required a treatment facility. These permits were delayed 
until the question of transferring the facility was resolved, 
which the Army decided not to do. Then, rather than solve the 
problem, yet another study was undertaken. This study, too, 
argues it is okay to dump without any limits. It, however, 
makes conclusions that cannot be substantiated and even in a 
reading most favorable to the Corps, finds that alum is 
discharged at rates that exceed EPA's criterion and itself 
recommends terminating discharges for a third of the year and 
extending one discharge pipe several hundred feet to dilute 
now-toxic discharges to nontoxic levels.
    Why has the dumping been allowed? Corps and EPA documents 
express concern about ``trucking through an affluent 
neighborhood'' or ``high-value areas'' and the ``political 
nature of the neighborhood'' and worry that ratepayers oppose 
an increase. One EPA official remarked about wholesale 
customers who ``worked over'' public officials who are 
``shocked'' to learn of the dumping. And, of course, there have 
been letters, memos, and meetings with Senators, 
Representatives and other officials.
    The Corps defends its practice, stating that it has been 
doing this since 1927. How many other big point source 
polluters can tell you that the Clean Water Act has had no 
effect on them? How many can tell you it is okay with the EPA 
and the National Park Service and the National Marine Fisheries 
Service to dump in a national park and habitat considered the 
primary, if not only spawning ground of a Federally endangered 
species that is considered to be generally present? The answer 
is none.
    Please listen carefully to the testimony and the comments 
you will hear today and then contact the agency heads 
represented here and ask them if, in fact, their agencies 
policies were accurately represented because when you strip 
away the parsing, here is what you are being told.
    NPS: It is okay to dump tens of millions of pounds of 
chemically treated sludge and tens of thousands of gallons of 
water with chlorine levels that exceed state standards by 
fivefold into a national park and to dump sludge that is toxic 
to aquatic life and threatens the survival of fish species of 
concern on NPS-controlled river bottoms.
    Corps: It is okay to dump into U.S. waters in direct 
violation of an NPDES permit and with more than 83 percent of 
the discharges above Chain Bridge having concentrations of 
total suspended solids that are greater than the effluent found 
to be acutely toxic to fish in its own study and to do so at 
night to intentionally obscure the discharges' effects.
    NMFS: It is okay to discharge hundreds of thousands of tons 
of chemically treated sludge into suitable spawning habitat for 
an endangered fish it considers present generally so long as no 
study following NMFS's protocol has been taken or so long as 
one can argue that any endangered fish that is killed without 
an incidental take statement may have come to this river from 
another.
    And EPA: It is okay to dump into an American Heritage river 
and a tributary of the Chesapeake Bay with total suspended 
solids concentrations in the tens of thousands and to routinely 
exceed an EPA pollutant criterion and to allow this, at least 
in part and in spite of the EPA administrator's focus on 
environmental justice because the neighborhood around the 
facility is affluent.
    Each of the agencies represented here today and charged 
with protecting our nation's resources actions are consistent 
with the positions I have just described. Exactly, I am not 
sure why but it is my hope that you will find out and help fix 
the problem. Thank you.
    [The prepared statement of Mr. Gordon follows:]

    Statement of Rob Gordon, Director, National Wilderness Institute

    Mr. Chairman:
    Thank you for holding this hearing to investigate the damage done 
by discharges from the Washington Aqueduct to the flora, fauna and 
habitat and the natural and cultural values of the Chesapeake and Ohio 
National Historic Park. Sadly these discharges are conducted by the 
Corps and permitted by EPA.
    For years, the discharges from the Washington Aqueduct have harmed 
this National Park that otherwise retains tremendous natural beauty 
near the heart of a major metropolitan area and is built around one of 
the greatest American Heritage Rivers, the Potomac River, an 
irreplaceable symbol flowing through our Nation's Capital. Sections of 
this unique park were surveyed by our first president. The Potomac is 
enormously popular with fishermen, paddlers or other recreationalists 
because of its unique physical characteristics from the majesty of 
Great Falls to the spawning grounds below Little Falls that may be the 
primary if not only spawning grounds of a highly endangered fish.
    This EPA permitted dumping by the Corps clearly violates numerous 
Park Service Rules, the Clean Water and the Endangered Species Act and 
is an offense to those who appreciate this park.
    When the Corps dumps a massive black plume with a rotten stench 
clouds the Potomac as its seeps through the center of the Park. 
Millions of pounds of sediment with alum are dumped into the Potomac 
within a matter of hours.
    According to the Corps of Engineers itself, it is the equivalent of 
dumping 15 dump trucks a day, every day all year into the Potomac. Let 
me repeat that--15 dump trucks a day, every day all year into the 
Potomac. The National Park Service would never--never--tolerate this in 
the Grand Canyon, at Glacier, at Yellowstone or the Everglades. This 
single undisputed fact, I think, would seem to the average American all 
the rationale that is necessary for this hearing to conclude that this 
practice is wrong, should have stopped years ago and must be 
immediately addressed. It is disgraceful and deeply disturbing that 
agencies charged with stewarding our nation's treasures and protecting 
our natural resources are party to this.
    As recently as August of this year this same facility was found to 
be discharging treated water into Little Falls Branch in the National 
Park having chlorine levels that exceed Maryland state standards by 4 
and 5 times.
    But rather than fix these problems, you are hearing today from 
officials who have been actually telling people that what you have seen 
really isn't that bad, and whatever standards exist somehow what they 
do does not violate them and that they should just given more time to 
work it out.
    Documents show the Corps actually discussed diverting this 
discharge to D.C.'s Blue Plains sewage treatment facility about three 
decades ago and the Clean Water Act permit issued in 1989 called for 
provisions for a ``sludge handling system.'' A consent order issued by 
EPA after the Corps violated water quality standards related to the 
safety of drinking water required the Corps to actually conduct much of 
the design work of a dewatering facility so that the tons of pollution 
could be hauled offsite. Around that time EPA draft permits would have 
placed limits on the discharges resulting in the requirement that a 
treatment facility be constructed. These new permits were delayed until 
the question of transferring ownership of the facility was resolved. 
The Army reviewed transferring ownership but then decided it would not 
transfer ownership of the facility. Rather than solve the problem yet 
another study was undertaken.
    The Corps' newest study is yet another excuse to further delay 
addressing the problem and continue the dumping into the Potomac 
without any limits whatsoever on total suspended solids and alum. The 
new study, however, makes conclusions that cannot be substantiated with 
the data generated. The Corps own recommendations call for terminating 
discharges for a third of the year and extending one discharge pipe 
several hundred feet into the river to sufficiently dilute discharges 
so that they will not be toxic in the future.
    This practice--the midnight dumping of millions of pounds alum 
tainted sludge that measures in the 10,000 of milligrams of suspended 
solids per liter--is not reasonable or common. The Corps has, somewhat 
amazingly, defended their practice by stating that it has been doing it 
this same way since 1927. How many other enormous point source 
polluters can tell you unabashedly that the Clean Water Act has had no 
effect on the way they dump? How many can tell you they don't have to 
change their practices even though they dump in and through a Untied 
States national park and into habitat considered the primary if not 
only spawning ground of a Federally endangered species that regulatory 
agencies say is ``present generally.'' The answer is no other facility 
in the entire country and it is time for this facility to stop harming 
a national park, an American Heritage River, our Nation's Capital and 
an endangered species, abide by the policies, standards, and laws 
applied to the rest of America, and join the modern world.
                                 ______
                                 
    Mr. Radanovich. Thank you, Mr. Gordon.
    Mr. Leisch, welcome.

 STATEMENT OF GORDON LEISCH, FIELD BIOLOGIST, FORMERLY OF THE 
  DEPARTMENT OF THE INTERIOR, OFFICE OF ENVIRONMENTAL POLICY, 
                      ARLINGTON, VIRGINIA

    Mr. Leisch. Mr. Chairman, thank you for holding this 
hearing and giving me the opportunity to testify.
    My name is Gordon Leisch. I have a bachelors degree in 
biology, a masters degree in biology and ecology. From 1970 
until 1974 I was employed by the U.S. Army Corps of Engineers 
Omaha District where, as a field biologist, I wrote 
environmental impact statements and I wrote the environmental 
protection section to civil work contracts. From 1974 until I 
retired in 1997, I was in the Department of Interior and I 
worked in the Office of Environmental Policy.
    I have been an avid fisherman in the Potomac River all my 
life. I grew up close to Little Falls. I still fish there 
today. I am on the river almost every day of my life. I have 
witnessed the effects that these discharges have upon the 
Potomac River and can tell you from firsthand experience that 
they are causing serious harm. As soon as the discharge hits 
the main body of the Potomac River, all feeding activity 
ceases. All feeding and chasing of the fish either goes to the 
D.C. side or it just totally disappears. You can see fish 
avoiding the area. The cormorants leave. The great blue herons 
leave. They go to other places. If you look above the outflow 
upriver, everything is normal. Fishing goes on.
    I can recall during my high school days in the early 1950's 
there were infrequent discharges from Dalecarlia Reservoir into 
Little Falls Branch and the old spillway which is now the 
service road to the emergency pumping plant. Today the 
discharges are more frequent, more intense and more offensive.
    If you happen to be on the platform area of the emergency 
pumping plant when a discharge occurs you will see the effluent 
skirt two feet high out of the bolt holes in the metal plates. 
I have seen the discharge shoot across the Potomac River to the 
Virginia shoreline. It depends on the river stage how far it 
will shoot but the muddy sediment persists until Key Bridge.
    This year, beginning in February, heavy dumping occurred 
frequently well into June, more than any previous year that I 
have observed. It would be a miracle if any fish spawn survived 
the spring in the area of the Little Falls. Sediment can be 
very harmful to fish, especially when it interferes with 
spawning, and these discharges occur in the spawning grounds of 
rockfish, shad, perch and many other fish. The endangered 
shortnose sturgeon is known to be in the Potomac and Little 
Falls is the only suitable spawning grounds in the river.
    I have seen sediment that was six to eight inches deep 
after a discharge. On the D.C. side where the river is slower 
and shallower I have seen sediment several inches deep all the 
way to Chain Bridge. The sediment covers the river bottom until 
it is flushed away by heavy rains or high water. The sediment 
could easily smother any eggs or larva that are in the area.
    Normally the discharge is clay-colored, foamy and heavy 
with sediment. Some of the discharges this year were soupy, 
dark gray in color and had the odor of an open septic tank. The 
stench from a discharge that occurred May 22 was so powerful 
that it could be smelled a mile downriver from the point of 
discharge. Fishermen, including myself, often refer to Little 
Falls Branch as ``stinky creek'' because of the chemical smell 
from the discharges. Some fishermen have told me that they were 
almost overcome by the chlorine fumes and they had to leave the 
area. Aquatic insects and plants present in other creeks nearby 
are not found in Little Falls Branch below the discharges. From 
the point where the discharges come from outfall 5, Little 
Falls Branch is devoid of life. I have seen dead eels, 
bluegills, perch, shad and even a turtle that apparently 
entered the creek between discharges.
    At times a root beer-colored foam covers the river from 
shore to shore and that was that one picture that you had up 
there and the one little bit of green was the green paddle from 
the rowboat. This foam is not naturally occurring.
    In summary, I wish to make three points that I believe are 
beyond dispute. The first is that the discharges of this size 
affect fish behavior in a critical spawning and nursery area. I 
am uncertain whether the fish leave, whether they go deep, 
whether they suspend, but there is no doubt that the sediment 
has an effects on the behavior of the fish feeding, migrating 
and spawning. Even fish-eating birds leave during a discharge. 
I know from 50 years of fishing in this area that spawning 
conditions for all species of fish has never been worse.
    The second is that these discharges cause mortality to fish 
and wildlife and destroy habitat in the park and in the 
Potomac. A few years ago I accompanied a Fish and Wildlife 
Service biologist on a survey of the river bottom affected by 
the discharges. He found only two specimens of submerged 
aquatic vegetation at five snorkeling locations. These 
locations were downstream from the outflow.
    The third point is that these discharges are highly 
offensive. They have a revolting smell. They look horrible. 
They despoil a prime outdoor recreation area used by joggers, 
paddlers and fishermen. These discharges should not be 
permitted anywhere and certainly not in a national park.
    Thank you, Mr. Chairman, for permitting me to testify. I 
would be happy to answer any questions.
    [The prepared statement of Mr. Leisch follows:]

   Statement of Gordon Leisch, Field Biologist, Formerly of the U.S. 
       Department of the Interior, Office of Environmental Policy

    My name is Gordon Leisch. I have a bachelor's degree in biology and 
a master's degree in biology and ecology. From 1970 through 1974 I was 
employed by the Army Corps of Engineers writing environmental impact 
statements, serving as a field biologist and writing the environmental 
protection section for civil works projects. From 1974 through my 
retirement in 1997 I was employed by the Department of Interior in the 
Office of Environmental Policy.
    I have been an avid fisherman of the Potomac for all my life, 
having grown up near Little Falls and fishing regularly there from 
childhood through today. I am on the river almost every day of the 
year.
    I have witnessed the effects the discharges from the Washington 
Aqueduct are having on the Potomac River and can tell you from careful, 
direct observation that they are causing serious harm. These discharges 
are flushed through the C&O Canal National Historic Park into the 
Potomac River, an American Heritage River. As soon as a discharge hits 
the main body of water, all feeding activity ceases. All biting ceases. 
You can no longer see fish feeding or chasing bait. You see fish 
avoiding the sediment plume. Birds such as the great blue heron and 
cormorants leave the area. Above the outflow, fish activity goes on, so 
there is no doubt the dramatic change in fish behavior is caused by the 
discharges.
    I can recall that during my high school days in the early 1950's 
there were infrequent discharges from the Dalecarlia Reservoir into 
Little Falls Branch and the old spillway, which is now the service road 
to the emergency pumping plant. Today, the discharges are more 
frequent, more intense and more offensive. If you happen to be on the 
platform area of the Emergency Pumping Plant when a discharge occurs 
you will see the effluent squirt two feet high out of the bolt holes in 
the metal plates. I have seen the discharge shoot across the Potomac 
River to the Virginia shore. Depending on river stages, muddy sediment 
from the discharge can persist past Key Bridge.
    This year, beginning in February, heavy dumping occurred frequently 
well into June, more than any previous year that I have observed. It 
would be a miracle if any fish spawn survived this spring in the 
vicinity of Little Falls. Sediment can be very harmful to fish, 
especially when it interferes with spawning and these discharges occur 
in the spawning grounds of rockfish, shad, perch and other fish. The 
endangered shortnose sturgeon is known to be in the Potomac and Little 
Falls is its only suitable spawning grounds in the river.
    I have seen sediment that was 6 to 8 inches deep after a discharge. 
On the DC side where the river is slower and shallower, I have seen 
sediment several inches deep all the way to Chain Bridge. The sediment 
covers the river bottom until it is flushed away by heavy rains or high 
water. The sediment could easily smother any eggs or larval fish that 
are present.
    Normally the discharge is clay colored, foamy and heavy with 
sediment. Some of the discharges this year were soupy, dark gray in 
color and had the odor of an open septic tank. The stench from a 
discharge that occurred on May 22 was so powerful that it could be 
smelled a mile down river from the point of discharge.
    Fishermen, including myself, often refer to Little Falls Branch 
that flows through the C&O Canal National Park as ``stinky creek'' 
because of the chemical smell from the discharges. Some have told me 
that they were almost overcome by the chlorine fumes and felt they had 
to flee for their lives. Aquatic insects and plants present in other 
creeks nearby are not found in Little Falls Branch after the 
discharges. From the point where discharges from outfall 5 enter it, 
Little Falls Branch is devoid of life. I have seen dead eels, 
bluegills, perch, shad and even a dead turtle in the creek. They 
apparently entered the creek between discharges.
    At times a root beer colored foam from the discharges covers the 
river almost bank to bank. I keep a log of river conditions. The log 
shows that the foam corresponds almost exactly with the discharges. I 
took some photographs of the foam and brought enlargements with me to 
show this Committee. To give you a sense of perspective on how thick 
the foam is, I can tell you that the green object in the foreground is 
an oar. The pictures were taken near Fletcher's Boat House that is in 
the National Park. You can see for yourselves that this is not 
naturally occurring foam.
    In summary I wish to make three points that I believe are beyond 
dispute.
    The first is that discharges of this size and nature affect fish 
behavior in a critical spawning and nursery area. I am uncertain 
whether the fish leave or go deep or suspend, but there is no doubt 
that their essential behavior patterns of feeding, migrating and 
spawning are interrupted. Even fish eating birds leave during a 
discharge. I know from fifty years of fishing the area that spawning 
conditions for all species have never been worse.
    The second is that these discharges cause mortality to fish and 
wildlife and destroy habitat in the Park and in the Potomac. A few 
years ago I accompanied a Fish and Wildlife Service biologist on a 
survey of a section of the river bottom affected by the discharges. He 
found only two specimens of submerged aquatic vegetation at the five 
snorkeling locations he sampled downstream from the outfalls.
    The third point is that these discharges are highly offensive. They 
have a revolting smell. They look horrible. They despoil a prime 
outdoor recreation spot used by joggers, paddlers, and fishermen. These 
discharges should not be permitted anywhere, and certainly not in a 
national park.
                                 ______
                                 
    Mr. Radanovich. Thank you, Mr. Leisch.
    Just on a programmatic discussion here, I think I am going 
to give--I have a lot of questions. I have a lot of questions. 
Dr. Hogarth, we are going to try to accommodate you and your 
schedule. I hope you will work with ours, too, just to make 
sure that we do not have to reconvene hearings and do this all 
over again. At the same time I am sure other members have 
questions, as well, so I am going to go with 5 minutes and then 
each member go with 5 minutes of questions and then we will 
just start it all over again until all the questions are asked 
and all the questions are answered.
    So with that, I think what I will do is Mr. Parsons, if you 
can help clarify what seems to be a contradiction. You had 
mentioned that nothing is discharged onto park property, 
although the Army Corps states that they do discharge onto park 
property. There are apparently 75 feet of stream or drainage 
between the pipe outlet and the actual shore of the river that 
is actually C&O property, that it does not discharge--it is not 
underground apparently, under the C&O park. Can you clarify 
this for me?
    Mr. Parsons. I did not mean to imply that it did not 
discharge onto park land. That is, there is a pipe--well, there 
are seven different circumstances but in any event--
    Mr. Radanovich. Because there are seven different outlets?
    Mr. Parsons. Yes. One, for instance, the one we spent the 
most time talking about here, comes down Little Falls Branch, 
which passes through the park. There is no doubt about it. It 
is not an engineering work; it is a natural stream that comes 
through there or creek. But in the case of the pipes that 
discharge, they are discharging into a runnel or trench as some 
have called it that is about 75 feet from the Potomac.
    Mr. Radanovich. So it does actually discharge into the 
park?
    Mr. Parsons. Yes, it does.
    Mr. Radanovich. Can you clarify something for me, too? It 
was my understanding that the actual bottom of the Potomac 
River, is that national park property? I know C&O may not go 
into there but isn't that National Park Service jurisdiction 
that goes into the Potomac River itself?
    Mr. Parsons. In the District of Columbia only. I guess I 
should clarify that. The State of Maryland owns the bed of the 
river. Unlike most rivers, it is not divided down the thread of 
the stream; it is to the highwater mark in Virginia. So when 
the District of Columbia was established we took from the State 
of Maryland that jurisdiction, not only the District of 
Columbia itself but within its boundaries the bottom of the 
Potomac River.
    Now it is not included in the National Park System. We 
manage it as a miscellaneous property, the Interior Department. 
In other words, it has never been designated as a unit of the 
National Park System, the bed of the river, even though many of 
the shoreline properties are under our jurisdiction.
    Mr. Radanovich. Do you implement any programs on the 
Potomac River because of that jurisdiction you have over it or 
is it basically ignored by the National Park Service?
    Mr. Parsons. What we generally do is issue permits for 
construction activities, such as the Woodrow Wilson Bridge, the 
various bridges that cross the Potomac and Anacostia Rivers. 
The Anacostia is included in this, as well.
    Mr. Radanovich. What is the relationship with the National 
Park Service and the implementation of the Endangered Species 
Act? Do you have a concern about that or if, for example, in 
Yosemite or Yellowstone or somewhere where there was a 
threatened endangered species would the National Park Service 
have any concern about that or would they implement programs to 
guarantee the protection of that endangered species?
    Mr. Parsons. We are certainly protective of endangered 
species within the boundaries of a national park, absolutely.
    Mr. Radanovich. Dr. Hogarth, I want to begin some questions 
for you. One, if you can, explain to me in chronological order 
what consultation actually NMFS has conducted with the National 
Park Service, EPA and the Army Corps of Engineers since the 
listing of the sturgeon, which was in 1967.
    Dr. Hogarth. I do not know if I will go back as far as you 
want. I will check when I go back to the office to make sure, 
but my understanding is we started basically in about 1998, as 
far back as I am familiar with now, that we had consultations 
with EPA on discharges. Then in January 2000 we signed a 
memorandum of agreement with the EPA to improve coordination of 
the Clean Water Act and ESA where we are looking at 45 
pollutants that they have; we are looking at those as to how 
they are affecting the aquatic life.
    But now we are waiting for the EPA pollutant report and we 
will continue our consultation based on the report that she 
mentioned was completed in October. We will review that and, if 
necessary, we will do a ``formal'' consultation and a 
biological opinion. So far, there has not been a formal 
consultation on this particular action that I am aware of. I 
just started a few months ago so I will go back and check.
    Mr. Radanovich. Can you tell me, it seems to me that there 
was some disagreement about how far the shortnose sturgeon was 
appearing up on the Potomac River. Some say a little further 
downstream and no farther than where the Wilson Bridge is being 
constructed.
    Are you quite certain and can you say today that the 
shortnose sturgeon is obviously up into the area of the Potomac 
where the discharges are occurring and that also according to 
biological surveys, the best spawning ground is upstream as far 
as you can go on the Potomac until you hit some type of dam 
structure or barrier, and that is exactly where the dumping is 
occurring? Can you concur with that?
    Dr. Hogarth. We feel very confident that at Little Falls, 
for example, that would be a good habitat for spawning (based 
on indications in other rivers throughout the system). We have 
not documented spawning taking place at Little Falls. Shortnose 
sturgeon go from Canada to Florida, basically. In looking at 
habitat in other areas you would compare with this, you would 
think it would be a good spawning area.
    As far as fish are concerned, shortnose sturgeon 
themselves, most of the sampling or most of the documentation 
has been below the aqueduct, 55 miles or something below it. 
There are some indications that there are a few fish in the 
general vicinity.
    The discharge, as I think one of the tables stated, a 
discharge would potentially drive the fish back downriver, so 
it depends on how the sampling is taking place and that I am 
not sure of. We did develop some protocols in the last couple 
of years to be used for shortnose sturgeon sampling so that we 
would be consistent throughout its range, since it is 
endangered. It does seem to be recovering much better in the 
northern range than it is in the southern range.
    Mr. Radanovich. Southern range of what?
    Dr. Hogarth. Of the species, the shortnose. It seems to be 
recovering much better in the Hudson and the Northern Delaware 
up than it is from the Chesapeake Bay south. The recovery rate 
seems to be much better.
    Mr. Radanovich. I am out of time but did want to ask one 
more quick question if I can before I pass on to other folks.
    When an endangered species is discovered, according to law, 
formal consultation needs to occur right then.
    Dr. Hogarth. Right.
    Mr. Radanovich. So you are saying that there has been no 
consultation?
    Dr. Hogarth. Basically what we did when this was listed was 
that it appeared that the main problem with the shortnose 
sturgeon came from recreational and commercial fishing, so we 
put a prohibition on any fishing for shortnose sturgeon. It is 
illegal to take any shortnose sturgeon or Atlantic sturgeon. It 
appeared to us at the time that was the primary problem with 
sturgeon, was the tremendous effort for the species because it 
had a lot of value for caviar and this type of thing, that 
there was tremendous fishing pressure and we prohibited any 
fishing pressure.
    Mr. Radanovich. All right, thank you very much.
    Ms. Christensen?
    Mrs. Christensen. Thank you, Mr. Chairman.
    I guess I would direct my first question to Mr. Parsons 
from the Park Service. Just clarify for me what authority the 
Park Service has to control anything that is happening in the 
aqueduct.
    Mr. Parsons. Excuse me. Happening where?
    Mrs. Christensen. Authority, does the Park Service have any 
authority over the aqueduct in any way?
    Mr. Parsons. Oh, not that I am aware of, no.
    Mrs. Christensen. When the C&O Park was being established 
were there any concerns such as this raised at that time, the 
time of the establishment of the park?
    Mr. Parsons. Not that would appear in any of the 
congressional records. There certainly was a concern by the 
State of Maryland that we would in some way prohibit taking of 
water from the Potomac and others who had permits across the 
C&O Canal, which is 185 miles long, and that is why the law 
provided that any existing pipelines or rights would be honored 
by the Park Service. We could not shut off their water.
    Mrs. Christensen. Right.
    Dr. Hogarth, you said something in response to the last 
question from the Chairman about the difference in the recovery 
periods in the Chesapeake and the Hudson, and so forth, I guess 
for the sturgeon. Would the Section 7 consultation that is now 
going on, would that answer some of those questions that you 
might have? Or might that clarify what the difference is?
    Dr. Hogarth. The results of the studies could give us an 
indication of things that were impacting in the Chesapeake Bay 
or particularly the Potomac River, why the population is not as 
robust or not increasing to the extent you would expect it 
based on other populations.
    Mrs. Christensen. And that consultation will determine 
where we go from here in terms of setting the regulations for 
the discharges, et cetera, Miss Gleason?
    Ms. Gleason. Yes, it will.
    Mrs. Christensen. Mr. Gordon, I understand that there is 
litigation going on at the present time over this?
    Mr. Gordon. Yes, ma'am.
    Mrs. Christensen. Who are the litigants? What stage is that 
right now?
    Mr. Gordon. As regards the Endangered Species Act, we filed 
the notice of intent in October, last October over this issue 
and we are now in the process of discussing discovery. We have 
also filed a notice of intent regarding Clean Water Act 
violations.
    Mrs. Christensen. So the intent of the legislation is--what 
are you seeking? What would you be seeking?
    Mr. Gordon. That the law be followed, that the discharges 
that harm shortnose sturgeon or their habitat be considered in 
terms of the jeopardy consultation process, that biological 
assessments, biological opinions be done. There is a whole host 
of things. There are numerous charges we have made in our 
notice of intent and our complaint that has been filed in U.S. 
District Court.
    Mrs. Christensen. Maybe I have not been serving on the 
Committee long enough but as I listen to the testimony from 
EPA, Army Corps of Engineers, National Marine Fisheries and the 
Park Service--well, the Park Service really does not have too 
much to do with this but it seems to me that this was a really 
good example of laws being followed and agencies working in 
collaboration and there is a big gap between what the agencies 
said and what Mr. Gordon said.
    I saw Miss Gleason taking some notes. Let me give you an 
opportunity to maybe respond to some of the issues that were 
raised in the other testimony. It seemed to me that the 
agencies were following the law and that there was a lot of 
coordination between the agencies in Section 7 but yet when I 
listen to the other testimony there seemed to be a real 
disconnect. Is there something that you would want to respond 
to that?
    Ms. Gleason. I would just like to say that we were 
following the law and continue to follow the law. We have been 
actively engaged for several years with the National Marine 
Fisheries and Fish and Wildlife on a number of permits, water 
quality standards within the District of Columbia, so they are 
no strangers to us and we are very involved related with the 
shortnose sturgeon and other endangered species in the District 
and have actively engaged and discussed--in fact, we have 
permit language in our permits in the District of Columbia that 
we have issued over the last couple of years that address their 
needs and concerns and actually require the permittee to submit 
annual reports, including data on discharges to the services to 
make sure that everyone is aware of what is going on and being 
discharged in these water bodies in the District.
    Mrs. Christensen. If I have time for maybe at least one 
more question?
    Mr. Radanovich. Sure.
    Mrs. Christensen. Then I will probably come back again.
    Mr. Leisch, since you fish in the area frequently, after 
the discharge goes into the river and the fish move away, do 
they come back?
    Mr. Leisch. Yes, they will return, probably the next day or 
the day after. As soon as they start dumping all fishing stops. 
You may as well pack your bag and go somewhere else.
    Mrs. Christensen. And you have been fishing there for a 
long time?
    Mr. Leisch. Over 50 years.
    Mrs. Christensen. Once the discharge has moved away and the 
fish come back, the fishing is as good as it has always been?
    Mr. Leisch. Actually, the Potomac River has sensational 
fishing almost everywhere but in that section. You can almost 
call that the dead zone.
    Mrs. Christensen. I think my time is up. I will perhaps 
have other questions.
    Mr. Radanovich. Mr. Kildee?
    Mr. Kildee. Thank you, Mr. Chairman.
    I address my questions to the colonel. Colonel, my son is a 
captain in the Army, a Ranger, and he has worked with the Corps 
of Engineers both in Korea and I think in Bosnia, doing some 
things over there. So I have great respect for the Corps, 
including back home.
    Let me ask you this question. What alternatives have you 
looked at for disposal? What do other water suppliers do to 
dispose of the sludge? I ask that because we are so concerned 
about the Chesapeake. I am so concerned. I have a home--of 
course I live in Michigan but I have a home out in McLean, 
Virginia, also, and for about 3 years I have had some solvents 
and some paints that I have stored in my garage because I am 
back in Michigan every weekend but my son, the captain, by the 
way, was home and I had him Saturday take that small amount, 
not even a truckload, not even one truckload, out to the 
Fairfax County hazardous disposal site because I was so 
concerned to make sure it did not get into the Potomac and into 
the Chesapeake.
    Have you considered alternatives and what do other water 
companies do, water suppliers do with the sludge?
    Col. Fiala. Sir, first off I hope your son is enjoying the 
Army and finds it as exciting as I have for 22 years.
    Mr. Kildee. He finds it very exciting. The two sons are 
captains, by the way.
    Col. Fiala. That is great, sir. It really is.
    In our by-law process to go through the process of renewing 
our permit we have looked at other alternatives and there are 
at least two that my staff has told me that are feasible.
    Now I remind the Committee that our operating costs and our 
capital improvement costs come from our customers. Just because 
it is operated by the Corps of Engineers, the money does not 
come from the Corps of Engineers budget.
    So two alternatives that we have looked at is the 
construction and operation of a dewatering facility. This 
dewatering facility would be built on our Dalecarlia area, our 
Dalecarlia plant area. The cost we estimate at $70 million with 
a $4.5 million annual operating cost.
    Now I do not want to get into the debate of the 
environmental impacts of that but we estimate 15 truckloads a 
day of the material leaving the plant that would have to 
transit out of the plant operation down there at Dalecarlia. We 
also have then the issue of what to do with this material once 
we cart it out from the plant. In other words, then you have to 
identify a disposal area, probably a landfill someplace.
    The second alternative is to move it down to Blue Plains to 
be processed down there. Now those of you that know the 
Washington, D.C. area know that Blue Plains is pretty close to 
their maximum capacity right now with the growth of the 
Washington, D.C. area, so that creates other environmental 
problems and other operating problems for Blue Plains.
    We are receptive to those alternatives. They come at a 
cost. There is an environmental impact to those alternatives 
and the process we are going through right now, in the 
permitting process we are going through right now, by law, 
requires us to look at all that.
    Mr. Kildee. I would hope so. I would hope that you would 
look at really environmentally sound alternatives. I think 
having been down here in this area with my second home for 25 
years, I am really concerned about the Potomac and the 
Chesapeake and I think government has to set the example. I 
think it is very important. We ask the private sector; we ask 
even homeowners to be very careful and I am very cautious on 
that. I think that government should set the example. I think 
we pass the laws and those who are the government should really 
even be ahead of the curve, maybe showing the latest state-of-
the-art of how to protect our environment and dispose of those 
things that can be harmful to the environment. So I would 
commend you that you pursue alternatives, Colonel.
    Thank you very much.
    Mr. Radanovich. Ms. McCollum.
    Ms. McCollum. Thank you, Mr. Chairman.
    To the EPA, chlorine discharges are four to five times 
higher than the state standard. Is that concerning to you?
    Ms. Gleason. It is concerning to us. Chlorine typically 
volatilizing. It does not stay in the water. There is data that 
shows that the water that is discharged meets standards in the 
District of Columbia.
    Ms. McCollum. It meets standards but--
    Ms. Gleason. Water quality standards.
    Ms. McCollum. Water quality standards but yet there is 
documentation and you are aware of the fact that four to five 
times the state level of chlorine is routinely discharged.
    Ms. Gleason. I know some of the issues related to that are 
upstream in Maryland. I know that Maryland Department of 
Environment, actually, and the Corps of Engineers are talking 
about that and sharing information and data.
    Ms. McCollum. So we know a state law is being broken.
    I ask the Park Service, sir, even though you do not have 
any jurisdiction, and this is my first term on the Resources 
Committee, I have noticed from reading some of the park plans 
that one of the things that the park, when they are going 
through their redevelopment or any changes that they are making 
at all, they talk about the appearance, preserving appearance, 
having the visitor have something that is pleasing to the eye.
    Looking at these photographs and hearing the smell 
described, do you think that the Park Service is being well 
served by the appearance of this particular part of the stream, 
river?
    Mr. Parsons. That is a very difficult, good question. Many 
of these discharges are used so infrequently, annually, for 
instance, that there is little residue or impact once the 
discharge has occurred.
    So visitors--I call your attention to the culvert over 
there with the redbud in the picture. That is Little Falls 
Branch. The people walking along the canal then walk along that 
piped railing and during a discharge I am sure that it is not--
I have never seen one myself--it is not something aesthetically 
that the visitors would enjoy, to get to your point.
    So we have never addressed that on the C&O Canal as to the 
impact on the visitors of the intermittent discharges that 
occur in this park.
    Ms. McCollum. But if you were to be putting together a 
reupdate of the visitors' comments and all, that would be 
something that--I would assume that we would hear a lot of 
testimony about that if you were doing a visitors park 
reapplication permit?
    Mr. Parsons. Yes.
    Ms. McCollum. To the Army Corps, why do you dump at night?
    Col. Fiala. There are a couple of reasons for that. Number 
one, we are not hiding anything. Despite what the newspaper 
says--
    Ms. McCollum. I have not read the newspaper. I am just 
asking a question.
    Col. Fiala. There is that accusation in the newspapers.
    We dump or we discharge the sediment based on the highwater 
flows in the Potomac. Sometimes that is at night. Sometimes 
that is during the day. It is a 12- to 16-hour operation. We 
typically like to start that operation at night so that when 
daybreak comes it is a little bit easier to finish cleaning out 
the basins. I put our government employees down into the basins 
to clean them out and there are some safety issues there. I 
would rather be doing that final clean-up during the day than 
at night.
    In addition, because of how quickly the discharge 
dissipates in the Potomac River, if we are able to dump at 
night, by the time daybreak comes dissipation is away and we 
are impacting very little the fishing that goes on out there.
    So that is why we do that. Sometimes we will start the 
discharge during the day, sometimes in the evening hours.
    Ms. McCollum. Mr. Chairman, just a quick follow-up.
    So you admit that it impacts the fishing. Those were your 
words. So you are less likely to impact fishing and maybe a 
visitor's enjoyment by discharging at night. So in other words, 
there is a problem with fishing. There is a problem with, if I 
am a visitor who is visiting that area and I hit it during a 
discharge, I am more likely if you discharge during the night 
than during the day to have a better aesthetic adventure at the 
park, correct?
    Col. Fiala. Let me clarify when I say we impact fishing. 
You heard several testimonies here that talk about the fish 
that are in and around these areas. Our discharge temporarily 
provides a very minor impact to the fishing. And our studies, 
our water quality studies, both in the '93 study and the study 
we just finished up here in October lay that out 
scientifically. So it is temporary and it is very minor in 
nature.
    Ms. McCollum. Mr. Chairman, but if I am fishing that day 
and I have a brown root beer foam, I am not very likely to put 
my boat in the water. Thank you, Mr. Chairman.
    Mr. Radanovich. Thank you, Ms. McCollum.
    Dr. Hogarth, I have a question regarding the sturgeon and I 
want to get your opinion on this. Do you think that sediment 
dumping is negatively affecting the recovery of the sturgeon? I 
think in your previous testimony you had mentioned that it is 
done in the presence and that sturgeon are still present but we 
are talking about a listed endangered species where it is NMFS' 
responsibility to make sure that they recover. Do you think the 
sediment dumping is affecting the recovery of the endangered 
sturgeon?
    Dr. Hogarth. But I do not think we have enough data to 
support or refute that. We do think that if they are in the 
area, they would probably be moved out of that area during the 
discharge time. They would leave the area.
    Mr. Radanovich. Do you realize how that does not incredibly 
fly anywhere else in the United States of America, that 
statement? When you are charged with habitat protection of the 
endangered species, you can say well, the fish disappear when 
you dump into their habitat? It is your job to make sure that 
the recovery of the species is guaranteed and anything that 
affects the recovery of that species has to be stopped at all 
cost. That is the way the law reads.
    Dr. Hogarth. That is correct.
    Mr. Radanovich. So you cannot say the fish are okay because 
when we dump they leave. You are violating the law when you 
talk like that.
    Dr. Hogarth. What we have said is we have not been able to 
document fish in the area of the discharge, since the evidence 
in the early 1800's or late 1800's, but since 1996 we have seen 
some in the Potomac River but not in the vicinity of the 
discharge.
    Mr. Radanovich. So the species was listed in 1967 and in 
1983 you were given a permit to dump into the river. At that 
time formal consultation is required. To my knowledge there has 
been absolutely no formal consultation on the species since 
1983. Why is that? I mean these are answers that you should 
have had 20 years ago.
    Dr. Hogarth. You have a good point. We are doing the 
consultation at this time. That is why we asked for the 
studies. Based on this consultation, we will decide if we 
believe that the discharge is impacting the sturgeon. Then we 
will take appropriate action and a biological opinion, if we 
feel we have to do a formal consultation based on the data that 
we get from the studies that were just undertaken.
    Mr. Radanovich. When might you have that data?
    Dr. Hogarth. The report, they finished in October. It was 
submitted to us in the last few days. We have not received the 
report yet from EPA.
    Mr. Radanovich. Thank you.
    Mrs. Gleason, in a letter to the EPA expressing concerns 
about ending the discharges of sludge from the facility, the 
Corps officially states that the material would have to be 
picked up at Dalecarlia and trucked to any suitable site we 
might obtain. Due to local restrictions on various roadways in 
the area, these trucks would have to go south on leaving the 
plant, requiring them to travel through high-density, ``high-
value areas'' of D.C.
    There is a real concern about trucking sediments through a 
residential community, in my opinion, that has high value as 
opposed to low income. Is it not acceptable Corps practice to 
alter these policies based on the affluence of the area?
    Ms. Gleason. Let me step back for a minute. We were in the 
process during the time that those letters were written, 
probably in '96, '97, '98, of making a determination and trying 
to find out if the sediment is charged with having an impact on 
the river, so it was premature to even get into any debates 
about trucking. There were issues that the residents were 
raising relative to trucks because they were concerned. We knew 
the issues of the fishermen. We knew the issues of the 
services. We were trying to sort out through scientific data, 
through these studies, whether indeed the sediments could 
continue to be discharged the way they were or discharged in a 
different manner, whether they were a problem or not.
    Mr. Radanovich. So would it have been done in a different 
manner had this been a low-income neighborhood as opposed to a 
high-income neighborhood? Why was there even a mention of a 
high-value neighborhood?
    Ms. Gleason. People write letters with all sorts of things 
in it to us.
    Mr. Radanovich. Is it EPA's practice to discharge in a 
different manner in a low-income neighborhood than a high-
income neighborhood?
    Ms. Gleason. When I mentioned different manner I meant if 
there were any ways that the current discharge could be, 
instead of in a certain time frame, over a longer period of 
time, whether that would help the recovery that NMFS was 
speaking about, whether Fish and Wildlife were interested 
certainly in enhancing the Potomac River.
    Sediments in the Potomac are an issue for the entire 
Potomac. There are sediments in the river coming from the 
Maryland portions of the Potomac, from West Virginia. There are 
deforestation issues. We are trying to take a full watershed 
approach and deal with the entire sediment issue.
    The Chesapeake Bay is definitely impacted by sediments. The 
aqueduct pulls sediments into its plant from the Potomac. They 
do not create these sediments. They do add alum; we know that. 
We have done studies that were just completed that show that 
there is no impact, as far as we can determine scientifically 
at this point, of the alum in the river. We are trying to take 
a large watershed approach and draw in other groups to solve 
the overall sediment problem in the Potomac.
    Mr. Radanovich. I am out of time but if I could ask--
    Mrs. Christensen. Of course, Mr. Chairman.
    Mr. Radanovich. Thank you, Ms. Christensen.
    A water quality study in the vicinity of the Washington 
Aqueduct that was prepared by the Army Corps of Engineers 
states that the primary risk from deposition of suspended 
sediment on eggs and larvae of the endangered species would 
greatly affect its survival. So it is the deposition of 
suspended particles.
    Whether it is perfectly legal to draw water out of a dirty 
river and clean it up and put the dirt back into the river, I 
do not argue with that, but this practice is in direct 
violation of the Endangered Species Act and recover of an 
endangered species that you have known is there since 1967. 
That is the problem that I have and I think that you have known 
about this. Apparently it is in the study, the study has been 
released, and there has unfortunately been no enforcement of 
that act.
    With that, I will switch to Mrs. Christensen.
    Mrs. Christensen. I probably just have a couple of 
questions. I guess to Colonel Fiala, what occasioned the Army 
Corps to start looking at other alternatives? Why did you start 
pursuing other alternatives?
    Col. Fiala. Why did we? We are always working at the 
aqueduct to figure out how to provide better service in a cost-
effective manner and in line with our permits that we have to 
operate. We have, as I testified before, we have produced two 
different studies on water quality and as we work toward a new 
permit or a draft permit that the EPA will issue, that will 
drive the debate on other alternatives. That debate will be 
open, it will be open to the public, and it will be in 
accordance with the law. It will be a process that we will 
consult with the other Federal agencies and any other 
stakeholders and players in the region.
    Mrs. Christensen. You indicated that it would be about $4.5 
million operating costs annually. What is the operating cost of 
what you are doing now?
    Col. Fiala. Ma'am, that is $27 million right now. $27 
million a year is our operating budget annually.
    Mrs. Christensen. I see. Well, I guess the other question I 
would ask is how would you pay for a new facility if that was 
the alternative, the $70 million facility, if that was the 
alternative that you chose?
    Col. Fiala. We have to go to our customers and work an 
agreement to create a capital fund, like we are doing right 
now. We are currently upgrading certain parts of the aqueduct 
operation right now through a capital fund. So we would go to 
our customers and work their rates or work some other financial 
arrangement to construct the dewatering plant.
    Mrs. Christensen. I guess my last question would be to Miss 
Gleason, Dr. Hogarth and Mr. Parsons. Do you consider the 
present arrangement workable or would you prefer to see an 
alternative put in place? Is this workable? Do you consider 
what is being done now the optimal way of dealing with the 
situation or would you yourselves recommend that we look for an 
alternative way?
    Mr. Parsons. I am not sure I am qualified to answer that. 
On the one hand it is an aesthetic issue and on the second, it 
is a cost factor.
    There is one point--I would like to take this opportunity 
just to clarify one thing. There has been some testimony today 
that the discharge smells like sewage and I will fess up to 
another problem on the C&O Canal. We have a 96-inch sewer line 
that comes from Dulles Airport. It was put into the canal in 
the 1960's and has vents in this area. I am certain that if 
there is any concern about that, that is its source, certainly 
not the discharge that comes from the Dalecarlia Reservoir.
    Dr. Hogarth. Well, just to clarify one thing, we have only 
seen four shortnose sturgeon in the Potomac River between 1996 
and the year 2000. We have seen others in the Chesapeake Bay 
throughout its range. We are not sure, due to the timing of 
when the research took place. We issued about 41 research and 
enhancement permits since 1992 to look at shortnose sturgeon 
enhancement activities up and down the coast. We will have to 
look at the data that the EPA sends us and determine if it is 
having an impact. Then what we would do is in the biological 
opinion we give, what is called reasonable prudent 
alternatives. We would talk about not having the discharge 
during certain times when the fish migrate into the river to 
make sure it is not, or if the eggs are in the river, to make 
sure of that.
    So we would look at it from the standpoint of the impact on 
the various life stages and when they migrate in. We would have 
to look at that data. But under the ESA we have no choice but 
to make a determination on what is best for the shortnose 
sturgeon and that is what we will do when we review this data 
and do the biological opinion.
    Mrs. Christensen. Miss Gleason?
    Ms. Gleason. We are at a point now, since the study has 
just been completed, that we are looking for various options. 
We are developing them to address the concerns that we are 
aware of, the concerns that the study points to, as well as the 
concerns that the other agencies and the public have. So we are 
drafting a permit and it will be out for public comment by the 
end of this calendar year.
    Mrs. Christensen. If I could just ask one more question, it 
should be a real short answer.
    Mr. Radanovich. Sure.
    Mrs. Christensen. You in your testimony said and the 
Chairman raised the issue again of the sediment and the 
possibility of smothering the spawning of the fish. Have you 
looked at that sediment and if you have, is the make-up of the 
sediment suggestive that it is just coming from the discharge 
or is it a mix?
    Ms. Gleason. Through this recently completed study there 
was a lot of modeling done that looked at the river natural 
conditions, as well as the discharge, where the solids go, how 
it migrates, what is deposited and what size, where. So we have 
probably the best data that we have ever had in the Potomac of 
how the solids in the river naturally move and how they move 
during these discharge periods. So I think we will have some 
really good information to evaluate our options.
    Mrs. Christensen. So you do not know now but you will know 
based on the studies that you are doing and the information 
that you have
    Ms. Gleason. The studies are completed. We are going 
through them right now. We are doing some overlays with 
submerged aquatic vegetation and seeing if there is any line-up 
with deposition patterns of the solids in the river.
    Mrs. Christensen. Thank you, Mr. Chairman. It has been a 
very informative hearing. I am still not sure. We do not have 
much jurisdiction over any of the agencies here but it has been 
an informative hearing.
    Mr. Radanovich. Thank you, Ms. Christensen.
    Dr. Hogarth, I am aware that you are going to need to take 
off and just have one more question. And I want to thank you, 
even though the testimony is not some of the most pleasant 
stuff, I think.
    In 1997 there was a flood in California and a levee broke 
and killed three people. What makes it, I think, relevant to 
this hearing is the fact that it happened to be the habitat of 
the elderberry longhorn beetle. The habitat on the levee was 
that. So they had to go through NMFS, go through a 6-year 
process to get permission to go and repair a weakened levee, 
even though they knew it was weakened for 6 years, and 
apparently did not get it in time for the flood. The flood 
happened and the levee broke and three people died. It was the 
habitat of the elderberry longhorn beetle. There was no 
evidence that it was present.
    In the Klamath River Basin, as you know, the water is being 
shut off to a whole valley of farmers up there, 1,200 of them 
because of the presence of some sucker fish--I am not even sure 
what the biological name is--not that it is present but it is 
the habitat of one that is known to be an endangered species.
    Why is that not the case here? You know that there is an 
endangered shortnose sturgeon on the Potomac. You know that 
that is the habitat of that and may very well be the ideal and 
probably only breeding ground. Why is it that you can shut--
that NMFS or the U.S. government can allow these things to 
happen--people die, farmers go bankrupt--and yet when it 
happens here, what is your explanation for why that has not 
happened here?
    Dr. Hogarth. I think here several things--the different 
behavior of different species. The sucker is more of a 
stationary animal. It stays in the area. It does not migrate 
great distances. Shortnose sturgeon, as we said, is an 
anadromous species that will spend a great deal of its life in 
the lower reaches, in the ocean, in the saltwater and goes up 
to freshwater. It will go great distances, 130 miles, to spawn. 
That is why we lack the information to see the distance it is 
migrating up the river, so what impact it would have.
    Is it spawning in the Potomac River, based on four fish? We 
do not have the information that we have on the others. We have 
a lot better information, for example, on salmon on the West 
Coast, their patterns and all, than we have here on the 
Potomac.
    Now the Potomac has improved tremendously in the last 20 or 
30 years. I worked on it, in fact, back in the 1970's when I 
was in graduate school. We found virtually nothing in the 
Potomac except white perch and there has been a great clean-up 
campaign.
    I am not saying that we do not have a problem with 
shortnose. I am saying we have to go through this consultation. 
We stopped what we thought were the activities that were 
impacting sturgeon. It has worked, it seems, everywhere except 
in the Potomac River and we do not have a lot of information to 
say what level was the population in the Potomac to begin with. 
Now we have to focus in on chlorine in the discharge to see, 
since we are recovering it in other areas, if that may be 
something that is happening here. That is why we will use the 
consultation process very carefully to look at the Potomac 
River, the impacts.
    Mr. Radanovich. But you know that that area of the Potomac 
is the habitat of a listed species, the endangered shortnose 
sturgeon, correct? You know that that is the habitat.
    Dr. Hogarth. Yes, Little Falls, we feel like is the similar 
habitat of the shortnose sturgeon that is in other rivers, yes, 
sir.
    Mr. Radanovich. And the law reads that if you know that 
that is the habitat of a shortnose sturgeon, you are obligated 
to protect that habitat at any cost. That is the way the law 
reads.
    Dr. Hogarth. Yes, we have said similar habitat but we do 
not have any data that shows the presence of it in that area.
    Mr. Radanovich. You do not need data. You have the presence 
of the endangered species in that area.
    Dr. Hogarth. That is correct.
    Mr. Radanovich. You know that is the habitat and you have 
selectively enforced the Endangered Species Act. At least in 
California you have done it to the extreme. Here you have 
completely ignored the law for almost 30 years, probably more.
    Thank you for coming. I do appreciate you being here. If 
you need to go, I wish the others would stay because I still 
want to--
    Dr. Hogarth. In closing, I do appreciate it because I do 
have another hearing at CEQ. As I said, I just started in this 
job in this administration about 2 months ago. We will look at 
this very carefully, as we do all consultations. There is no 
selective enforcement or implementation of ESA.
    Mr. Radanovich. Oh, there is. There is, sir.
    Dr. Hogarth. I try not to.
    Mr. Radanovich. That law, I think the evidence clearly 
shows it today. But thank you very much for being here.
    Dr. Hogarth. Thank you.
    Mr. Radanovich. Mr. Gordon, would you care to recreate this 
scene in an ideal situation since 1967, since the appearance of 
an Endangered Species and explain to me how things maybe should 
have happened and what should have been allowed, maybe what 
should not have been allowed?
    Mr. Gordon. Yes, sir. I think it is quite simple. The law 
says if a species may be present, then if there is a government 
action going on in that area that may affect it, you must do a 
biological assessment. These discharges constitute an action 
that is going into habitat that Federal biologists have 
determined is the primary, if not only, spawning ground of the 
endangered shortnose sturgeon, yet no biological assessment has 
been done.
    Mr. Radanovich. When should that biological assessment 
should have occurred?
    Mr. Gordon. I would argue that at least they should have 
started the process back in 1996 when the first specimen turned 
up in the river, which brings up another important question. 
You have heard that gee, there were only four and we have 
looked for these fish, according to the National Marine 
Fisheries Service, but we cannot identify whether they are in 
the Upper Potomac or not and the four we found were downriver.
    The four that were found were caught by commercial 
fishermen, not by the National Marine Fisheries Service or the 
Fish and Wildlife Service, and they were brought in through a 
reward program. The fact of the matter is, however, that 
commercial fishing is illegal in the District of Columbia so 
you would not turn up any in D.C. waters.
    Additionally, back in 1999 the National Marine Fisheries 
Service stated that there was going to be an assessment done to 
determine the presence of the shortnose sturgeon in the Upper 
Potomac and stated that this assessment would be critical to 
their assessment of the presence of the fish in the river. That 
assessment has never been done. So when you hear today that 
gee, we are not sure if it is there or not, the reason people 
are not sure if it is there or not is basically hiding behind 
studies that have not been done that should have been done. 
Additionally, there is substantial anecdotal information and 
historical information that would indicate that this species is 
present.
    If I could, I would like to address several things that 
have been said that are just not accurate. First, I have been 
down there. I took that photograph of the discharge and that 
location is nowhere near the sewer line. The sewer line runs 
along the C&O Canal itself and this is hundreds of yards from 
it. And I have smelled it there; it is not from sewage.
    Secondly, I am sad that Ms. McCollum left because I think 
there are some questions that she raised that were important, 
one being does the Park Service have some authority over some 
of these things?
    The discharges into Little Falls Branch of chlorine that 
exceeded Maryland state standards are into the national park. 
Little Falls Branch is in the national park and the Park 
Service has an obligation to protect the park resources.
    And as concerns chlorine there are numerous problems I 
would like to just bring up. On October 9 of this year the 
Corps received a letter from the D.C. Department of 
Environmental Health Administration that states the following. 
``It is our understanding that the final step in the process is 
the use of finished potable water to flush the remaining 
solids. If finished water is used in the flushing process, the 
discharge contains chlorine, presently in the form of 
chloramine used in the disinfection process. The existing NPDES 
permit--that is Clean Water Act permit--for the two reservoirs 
contains no provision for the discharge of chlorine in any 
form. We are requesting that you immediately initiative action 
to ensure that no chlorine is discharged in the Potomac 
River.'' So there is a serious concern about that.
    Additionally, I believe Colonel Fiala said that any harm 
that is done from their discharges is temporary and I would beg 
to differ. The report that the Corps produced, given the most 
favorable reading, says that it may pose a moderate risk to the 
survival of a species of concern, and that is the deposition of 
the sediments with alum, which has some toxicity to fish eggs 
and larva. That is the report's conclusion and the report 
actually recommends suspending discharges for 4 months of the 
year, which is not quite as significant a recommendation as the 
panel put together and sponsored by the EPA. Their number one 
recommendation was to terminate discharges. This panel was 
composed of representatives from the Fish and Wildlife Service, 
the National Marine Fisheries Service, Maryland Department of 
the Environment, D.C. Fisheries and the Potomac Commission.
    Now just two other things if you will bear with me but I 
have been sitting here listening to these things and I wanted 
to address them. I would like to just read one sentence from a 
letter from the former chief of the aqueduct that states, ``We 
would like to discharge the basins at night to minimize the 
impact on any river activities.'' So I think it is fairly 
straightforward why the discharges occur at night.
    And finally, Mrs. Christensen asked a question about 
sediment and whether it was the sediment from the discharges or 
the sediment that was naturally occurring in the river that 
actually affected the fish. The study that was done by the 
Corps mapped and measured specifically those sediments that 
come from the discharges and the recommendation that the 
discharges be terminated for 4 months of the year and the 
statement that these discharges pose a moderate risk to the 
survival of species of concern is based specifically on these 
sediments, the chemically treated sediments and the alum that 
comes with them that is discharged by the Corps, not the 
ambient sediments in the river.
    Mr. Radanovich. Thank you.
    Col. Fiala, I want to ask you a question. Just so you know, 
my big concern is that I think the Endangered Species Act is 
poorly written and because of that, it is being subjectively 
implemented all across the United States. It is my opinion that 
if the ESA was enforced in urban areas the way it is enforced 
in rural America where we do not have the votes to change it in 
the Congress, people would not tolerate it.
    I have an instance in my part of the country in California 
where they are trying to site a tenth campus for the University 
of California. It has been designated in a place called Merced, 
California. They have gone through a site selection process and 
they have identified a nice site. It is at the base of the 
Sierra foothills at an elevation of about 1,000 feet and it is 
rolling terrain. Of course, when the rainy season hits in 
California the water table fills up and there are little 
enclaves of water that are there until the dry season comes and 
basically they drain off. They have been given this name of 
vernal pools and in them is a listed species by the name of a 
ferry shrimp.
    The reason I bring this up is because you had mentioned 
previously in your testimony that there have to be 
environmental consequences on the decisions that you make with 
regard to, in this instance, the dumping into the Potomac, 
where in this instance in UC-Merced that is not, at least 
according to the law and at least according to the way that 
they are implementing the Endangered Species Act in that case, 
there is absolutely to be zero consequence to the environment, 
and all else must wrap itself around that, which provides a 
contrast to the way that this is being handled, the dumping of 
the sediment into the Potomac River and your statement that 
there are environmental consequences.
    Is that the way you view your implementation of the 
Endangered Species Act?
    Col. Fiala. Sir, in this case specifically, the Washington 
Aqueduct and the Corps of Engineers are an applicant to the EPA 
for its discharges. Therefore I would defer that question to 
the EPA and would caution that we are getting close to some 
issues that Federal agencies before you are in litigation over, 
so I want to make sure we know the limits as to--
    Mr. Radanovich. Maybe you can answer a general question for 
me. Then do you believe in the implementation of the Endangered 
Species Act? The law reads that if an endangered species is 
discovered that the species itself and the habitat must be 
protected at all cost, period. Do you believe that that is the 
case? Because you are charged with implementing the Endangered 
Species Act. Do you believe that or not?
    Col. Fiala. We are operating under the rules and 
regulations and the laws of our government. We have a permit. 
We have asked for renewal of that permit. There is a process 
for that permit renewal; we are following that process. We have 
been asked through our permitting process to provide studies on 
water quality; we have done that in two separate occasions. We 
have brought good science and engineering to this debate and we 
feel in the consultation process that is on-going with EPA and 
our other Federal agencies here that we will come to a solution 
that the Washington Aqueduct will move out sharply and execute.
    Mr. Radanovich. Then in your opinion, there are 
environmental consequences to the actions that you take. Is 
that what you sought in the permit that you received from the 
EPA or were you seeking strict enforcement?
    I understand that you are under permit from the EPA but 
your testimony says that there are environmental consequences 
to every action that you take when you need to enforce it, and 
that is not according to the law basically in the Endangered 
Species Act. You certainly must have a concern about that 
because you are charged with enforcing the Endangered Species 
Act in this case and yet you are being permitted by the EPA not 
to, basically.
    Col. Fiala. We are under the consultation process under the 
Endangered Species Act and study is part of that and we are 
working toward a solution under the law, under the Endangered 
Species Act, so we are following the letter of the law.
    Mr. Radanovich. Okay.
    Mr. Gordon, did you have the opportunity to read the 
October 4, 2001 report prepared by the Army Corps of Engineers 
entitled ``Water Quality Studies in the Vicinity of the 
Washington Aqueduct''? If so, can you give me some of your 
opinions on its conclusions?
    Mr. Gordon. Yes, sir. I have reviewed it and we have 
toxicologists and chemists and such reviewing it at this time, 
as well. We found that there were a lot of missing elements and 
lacking elements, that the breadth of the study was not really 
quite sufficient and that a lot of the conclusions drawn from 
the study were not supported by the data it contains.
    Let me give you a few examples of things that struck me 
particularly strange. When you hear testimony today that the 
discharges are not particularly toxic, we compared the 
concentration of, for example, total suspended solids that they 
used to test the toxicity with the historical average of the 
total suspended solids discharged by the facility and you will 
find that more than 85 percent of the discharges from the 
Washington Aqueduct have a maximum total suspended solids that 
exceeded the test concentration at which the report found 
chronic growth toxicity to aquatic invertebrates and that some 
of those exceeded the toxicity level by as much as 3 times; 
about 30% of them; so quite significant.
    This graph over here shows basically the total suspended 
solids level in different discharges from the aqueduct from the 
reports that the aqueduct submits to the EPA and those are 
ranked from highest to lowest since 1992, discharges above 
Chain Bridge, and the yellow lines are the level of the solids 
in the effluent samples used to measure toxicity and you can 
see that they are well below the average of the total suspended 
solids included in the effluent.
    There are numerous other problems with the study. The study 
was supposed to incorporate a study on striped bass, given that 
they are more sensitive. Those studies failed. There was 
supposed to be an aspect of it to determine the density and 
diversity of aquatic invertebrates. That did not generate 
reliable data because the devices filled up with too much 
sediment.
    The discharge point studied at that outfall that is 
indicated by that chart, the samples were actually taken 520 
meters downstream. The notion presented was that the river is 
too narrow there and it is somewhat dangerous. Sometimes that 
is true but I can tell you I was there 2 weeks ago at that 
outfall and you could reach around the rocks and find sediment 
that is clearly this kind of stuff because it had the same 
gelatinous consistency to it, that was several inches deep.
    The plume modeling for the sedimentation used an estimated 
concentration of 10,000 milligrams per liter to determine how 
much sediment accumulation there would be. Well, clearly many, 
many of the discharges from the aqueduct occur at levels way 
above that.
    Those are just a few of the problems and there are many. 
But even given that, you find that this report itself concludes 
that the discharges should be discontinued at least during the 
spawning season and that actually the discharges from one of 
the outfalls was toxic enough that it would require extending 
the pipe 200 feet further into the river to dilute it to the 
point where it no longer would be toxic.
    I think those things are all significantly different than 
the notion that has been presented to you here today that gee, 
there is not really any problem with them; they are not too 
toxic, they are not that bad for fish; maybe there is a minor 
risk from sedimentation or whatever risk is presented goes away 
after we discharge. That notion cannot be backed up by this 
study and is absolutely contrary to empirical, real-world 
experience. All the fishermen that go there will tell you that 
fish disappear, that the beds are affected by sedimentation, 
that the creeks that flow through the park, particularly Little 
Falls Branch, are devoid of life below the discharge point. So 
I do not place a lot of credence in the study.
    Mr. Radanovich. Okay, thank you very much.
    Miss Gleason, I have a number of questions that I would 
like to get on the record, if I could. Would you please clarify 
for me why the EPA continues--there seems to be an issue on the 
permit--why the EPA continues to allow the Corps to go forward 
with the dumping when it stated on the record that it would not 
extend the permit for a period of more than 6 months? 
Apparently EPA has gone on record that you would not allow the 
dumping and because of that, would not extend the permit for 
more than 6 months.
    Ms. Gleason. I am not quite sure what that means, Mr. 
Chairman. Perhaps you might be referencing the spawning period 
in the river that is about a four- to 5-month period?
    Mr. Radanovich. This was in reference to a memo on April 4, 
1996. It says, ``We cannot, however, delay indefinitely and 
anticipate issuing the draft permit no later than the end of 
the fiscal year,'' which was at the end of 1996, and yet the 
permit has been reissued. This was stated in an EPA memorandum 
to Congressman Jim Moran where it stated in here that you would 
not extend the permit based on the dumping and yet you have 
extended the permit in addition to that. It is a contradiction 
and EPA stands on the issue, I think.
    Ms. Gleason. The permit, once it expired in '94 since the 
Corps had submitted a timely reapplication, the permit under 
law administratively extends indefinitely until EPA issues a 
renewed permit.
    I am not sure. I would have to get back to you on that 
letter. I am not quite sure.
    Mr. Radanovich. Okay, we can certainly provide you with a 
copy. It was an April 4 letter written by W. Michael McCade, 
the regional administrator, to Congressman Jim Moran, which 
basically said you are not going to allow this to continue for 
the end of the fiscal year, which was--
    Ms. Gleason. I would have to read the context. I am not 
quite sure.
    Mr. Radanovich. We are happy to provide you with it.
    Are there no limits for alums or solids or irons on the 
Corps' Washington Aqueduct permit? Do you have ceilings set for 
those types of discharges?
    Ms. Gleason. No, there are no limits. Monitoring only.
    Mr. Radanovich. Why is that if you are concerned about 
habitat for endangered species, that you have not set limits 
for toxic elements of discharge into the river?
    Ms. Gleason. It would be the 1989 permit. When that was 
written it was not thought at the time that limits were 
appropriate. There were no impacts known at that time, based on 
the record that we have on the issuance of that '89 permit. So 
you would not put limits in a permit if you did not need them.
    Mr. Radanovich. Even though there was habitat for 
endangered species present?
    Ms. Gleason. We were not aware of that at the time.
    Mr. Radanovich. It has been listed since 1967 but you were 
not aware of it?
    Ms. Gleason. We were not aware that there was habitat that 
was considered critical habitat under the ESA.
    Mr. Radanovich. Are there any limits on any permits that 
you issue?
    Ms. Gleason. Oh, absolutely.
    Mr. Radanovich. But no limits on this one?
    Ms. Gleason. No.
    Mr. Radanovich. This is an unlimited permit, basically.
    Could you please name for me any other water treatment 
facility in the United States that discharged chemically 
treated water into National Park and National Heritage rivers? 
Are you aware of any?
    Ms. Gleason. I can tell you other facilities around the 
country that have similar discharges--
    Mr. Radanovich. Into National Parks or Heritage rivers?
    Ms. Gleason. I am not sure if--I would think that maybe 
some of the properties that they cross over, considering there 
are discharges into the Missouri and Mississippi Rivers. I 
would think there are some parklands, whether they are state 
parks or national parks. I would have to get back to you on 
that, particularly where the pipes cross, but there are other 
facilities around the country that discharge similar to the 
aqueduct.
    Mr. Radanovich. Are there discharges into rivers where 
there are known endangered species that require formal 
consultation?
    Ms. Gleason. Around the country?
    Mr. Radanovich. Yes.
    Ms. Gleason. I am not aware of whether there are any 
endangered or listed species. I would have to get back to you 
on that.
    Mr. Radanovich. Okay, thank you.
    Mr. Parsons, if you can answer to me if you know that they 
are discharging actually into the C&O National Park, cannot you 
just say no? Is it not within the National Park Service's 
authority to say you cannot do this anymore? Do you have the 
power to stop this?
    Mr. Parsons. Not that I am aware of.
    Mr. Radanovich. Would you have it in any other park, do you 
think? Is it because it is the C&O Canal National Park or do 
you not have the authority as the superintendent there?
    Mr. Parsons. I do not see that we have the authority to do 
that. Little Falls Branch is a natural stream that we happen to 
have intruded on by passing over it with a canal. It is not as 
though we are managing a lake below that has swimming or 
something that is part of our resource. I am not sure we have 
any authority to do that.
    Mr. Radanovich. I just do not understand because if there 
was chlorine being dumped into the Little Yosemite Creek that 
runs over Yosemite Falls do you think that the Park Service 
might have the authority to stop that?
    Mr. Parsons. I do not know. I can certainly research this 
and get back to the Committee.
    Mr. Radanovich. Interesting.
    Mr. Parsons, do you believe that the Army Corps' actions, 
specifically the discharge of sludge into the canal, does it 
impair park resources at all or the visitor's experience? Can 
you answer that question for me?
    Mr. Parsons. Well, our limited understanding of this is if 
it is an impairment, it would be visual. That is, we have not 
found any evidence that there is any impairment to resources or 
species in the park.
    Mr. Radanovich. But apparently there has been a Park 
Service official that has filed a number of reports regarding 
the discharge of sludge from the canal into the park. What 
action has been taken to address these reports? I mean it is 
obvious that an officer within the National Park Service has 
filed reports saying that this is--the Park Service sign says 
``Please report any listed activities on National Park Service 
properties,'' and one of those includes dumping of water waste. 
That is part of the charge of the National Park Service and yet 
you think it does not impair the visitor experience in this 
national park or does not cause disruption to the visitors 
there?
    Mr. Parsons. Well, I am not familiar with the reports that 
you are speaking of. My expertise goes to land resources, not 
the operational side of things. But I will certainly talk with 
our superintendent, Mr. Ferris, to see if those reports have 
been made available to him.
    Mr. Radanovich. But I think those reports were filed to him 
so you might want to check and see.
    Mr. Parsons. I will, absolutely.
    Mr. Radanovich. Because the person filing the reports was 
just doing his job, as required of a National Park Service 
employee.
    Mrs. Christensen, did you have any other questions?
    Mrs. Christensen. No.
    Mr. Gordon. Mr. Chairman, I would like, if I could, to just 
offer something else on that point as regards effects on the 
national park and the reports.
    National Park Service police officers have filed several 
reports and I would like to read just a paragraph from a 
report, a follow-up report produced by the EPA regarding their 
visit with one of the National Park Service police officers 
following his report.
    It states, ``On January 30, 1999 Chris Lay, a Park Service 
employee, saw a discharge along the Potomac shoreline in the 
District of Columbia. The discharge was described as black, 
foul-smelling and coming five feet up in the drainage channel. 
The channel runs approximately 30 feet to the river. As the 
flow subsided there were dead eels in the channel bed and 
fishermen in the area observed dead fish in the river. Officer 
Critchfield visited the same location a couple of days later 
and saw soap suds coming out of the same pipe. A call to Woody 
Peterson, representative of the Washington Aqueduct, confirmed 
that the Georgetown Basin was dumped at about the time that 
Chris Lay made his observations. Due to the recent drought in 
the Potomac watershed, the solids were held in the basin 11 
months instead of the normal 4 months. Since the solids are 
under anaerobic conditions, this would probably account for the 
noxious odor of the discharge. Mr. Peterson also confirmed that 
soap suds may have discharged from the pipe as they use a 
cleaner after flushing the solids from the basin.''
    Officer Critchfield then took the EPA official to the 
location that is permitted under the Maryland Department of 
Environment known as outfall 5 and it has been mentioned 
several times today as regards chlorine going into Little Falls 
Branch. It says that Officer Critchfield showed the inspector 
this discharge and then it says, ``The area was fenced off and 
drops down about 50 feet. The estimated flow was 100 gallons 
per minute. According to the Park Police officer, this 
discharge is always flowing whenever he comes by this location. 
The location, as shown on picture 4, had a strong smell of 
chlorine from a distance of about 50 feet above the 
discharge.''
    Mr. Radanovich. Thank you, Mr. Gordon.
    One final question for Col. Fiala, if you would. You have 
stated that the chlorinated water is used to wash out the 
basins and in your testimony you stated that the chlorine is 
effectively used up.
    What measurements do you have to validate this conclusion? 
And if so, why did the D.C. Environmental Health Administration 
state in a letter dated October 9, 2001 that the discharge 
contains chlorine and demand that immediate action be taken to 
ensure that no chlorine is discharged?
    Col. Fiala. We operate under a permit, so therefore we have 
no responsibility to sample the discharge. However, the science 
will tell you that chlorinated water very quickly gives up its 
chlorine residue when it becomes volatized as it strikes a wall 
or strikes a basin.
    In addition, the organic matter that is contained in the 
sediment will react very quickly with the chlorine material 
that is in the finished water and consume it well before that 
sediment is discharged into the Potomac River.
    Mr. Radanovich. Are you aware of any aquatic life in the 
stream below the discharge? To my knowledge, everything is dead 
beyond that point where the chlorine enters the discharge 
point.
    Col. Fiala. I am not aware of it.
    Mr. Radanovich. I think it is.
    You also mentioned that the chlorine discharge occurs every 
five to 6 years. I do not expect you to have this answer for me 
right away but if you can let me know if it did occur on 
Friday, October 19, I would appreciate knowing that.
    Col. Fiala. We will provide that.
    Mr. Radanovich. Thank you.
    Mr. Gordon. Mr. Chairman, on the chlorine I would just note 
that on the Corps' website it had a discussion of the 
conversion from chlorine to chloramine, which took place a few 
years ago and the website stated, ``Unlike chlorine, 
chloramines do not dissipate in the atmosphere by standing or 
aerating.''
    And then the notice went on to tell people that you needed 
to take specific treatment steps. You could not just depend on 
volatilization of the chlorine when it is discharged. In fact, 
there was enough of a concern about this that every single 
customer, at least in Arlington but I believe in other 
jurisdictions, was sent a notice by the wholesale customers of 
the aqueduct not to add the water produced by the aqueduct to 
their fish tank because it was harmful to fish.
    Mr. Radanovich. Miss Gleason, Col. Fiala stated that the 
testing requirement was not in the permit that was issued. Why 
not?
    Ms. Gleason. In 1989 there was not a concern. People were 
not concerned about that. They were using chlorine at that 
time. They have recently switched to chloramine.
    Mr. Radanovich. Okay. Thank you very much. It has been an 
illuminating hearing. I do have a concern about the environment 
but I have to tell you, if the ESA was implemented in my area 
of the state there would be people alive and there would be 
probably more jobs.
    I appreciate the testimony of everybody here and your 
appearance here but I think that on the Supreme Court it says 
equal application of the law and right here in the beltway 
there seems to be pretty much disregard for the Endangered 
Species Act and I think it is evidenced by the testimony here 
today. I hope some day that it can be taken care of 
legislatively, if not administratively.
    But I do appreciate your being here and to the members of 
the panel, as well, and this hearing is closed. Thank you.
    [Whereupon, at 12:07 p.m., the Subcommittee adjourned.]
    [The following letters were submitted for the record:]
    1. A Letter from the Department of the Army.
    2. A Letter from the Environmental Protection Agency.
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