Property Rights Foundation of America®

from the Sixth Annual New York State Conference on Private Property Rights
November 16, 2002, Albany, New York

Turning the Tables —"Good Guys" Using Environmental Law
Kathleen Benedetto, National Wilderness Institute, Washington, D.C.

Thank you, Carol. I would like to also thank you on behalf of Rob and Jim. They wish they could have been up here and they are grateful that we have been invited to participate in this conference.

I'd like to tell you a little bit about what we are doing. Carol described that we are taking on some of the people that have been suing all of us for many years. We are doing that in Washington, D.C. Our title for that program is called the Washington Conservation Project. We began that about three years ago in August.

Before I go there, I'd like to give you a little bit of background on NWI. As Carol said in the introduction, we have studied a number of different natural resource issues and environmental law. Our particular focus has been the Endangered Species Act. In 1997 we published Conservation Under the ESA - A Promise Broken. Our conclusion in that study was that no species had legitimately been recovered as a result of regulations promulgated under the ESA. The way that we went about evaluating the effectiveness of the ESA is that we looked at the recovery plans that had been published by the Fish and Wildlife Service and had to go through all of those. The gentleman in the back of the room who spoke to you earlier, Brian Seasholes, did most of that work. At the time he was an intern at the National Wilderness Institute.

One of the things that you will often notice is that the Fish and Wildlife Service periodically will go through an effort to prove that the Endangered Species Act works. This was a very popular activity in the summer of 1999, and there were numerous press conferences. In fact, on the Fourth of July, President Clinton had a White House ceremony, or I guess Rose Garden ceremony, and he had a bald eagle there. The eagle bit him. The eagle knew something that some of the rest of us didn't know. But he was announcing that the Fish and Wildlife Service, the Department of Interior, was seriously considering de-listing, or down listing, the bald eagle from the Endangered Species Act.

Later that same summer, the peregrine falcon was removed from the Endangered Species Act. The peregrine falcon's recovery was really due to private conservation efforts initiated by falconers and the Peregrine Fund. So it didn't have anything to do with the Endangered Species Act. In fact, if it hadn't been for some effort by the Peregrine Fund, the Endangered Species Act would have hampered their effort in the recovery of that particular species.

The announcement for the de-listing of the peregrine falcon took place in Boise, Idaho. However, there have been peregrine falcons in the Washington, D.C. area. There are peregrine falcons in Old Town Alexandria. And they were observed by Jim Streeter in our office. He comes in one day and his eyes are big and bright and he goes, I just saw a peregrine falcon take out some prey right here in Old Town. So Rob and Jim, and we are all sitting around discussing the peregrine falcon and then talking about the bald eagles. Well, I wonder where those birds are foraging from? Where are they nesting? Are they up in the Masonic Temple, the tower of the Masonic Temple? What about the Woodrow Wilson Bridge?

Hey, the Woodrow Wilson Bridge is in the news every day in Washington, D.C. It is at the southern end of the Beltway. It crosses the river between Maryland and Virginia, and it's always in the news for traffic problems. Every day, morning, noon, and evening. But it was also in the news because there is a replacement project for the Woodrow Wilson Bridge. It's supposed to be replaced within the next few years. And so there was some consternation going on about how is this going to get replaced, and different environmental organizations had filed suit to stop that from going forward. They were unsuccessful and the project is moving forward.

But when we were sitting in our office, we thought, well, there are peregrine falcons here and there are bald eagles, what other species that might be listed as threatened or endangered are also present in the area? And there were other federal projects going on, not only the Woodrow Wilson Bridge, but they had just finished working on the new Ronald Reagan Airport, rebuilding that. There were some other new projects that were coming on line and then there was the Washington Aqueduct.

We had some biologists that went out. They did a year's worth of field work and research, literature search, and came back and said that there are two species that are threatened by the number of projects that are going on in Washington, D.C. — the short nosed sturgeon and the bald eagle. We filed an Endangered Species Act lawsuit. The original notice was filed in August of 2000 and early in 2001 we filed the complaint. As of this point, we are now in the process where we are passing briefs back and forth in the court. In February, we filed a motion for discovery and, as a matter of fact, the judge, Judge Hogan, just ruled on October 9 in our favor of our motion for discovery. So now we are in the 60-day period where either side can file a motion for summary judgement.

Subsequent to that, we had all of this information that we collected from the administrative record, and we started following up doing more work on the Washington Aqueduct. When we filed our Endangered Species Act lawsuit, the agencies came back and said that this lawsuit should be dismissed for a number of different reasons. One of the reasons, they said, was that you are in the wrong court. You might have a case under the Clean Water Act, but certainly not under the Endangered Species Act. They said that we haven't taken any action, we haven't made a decision on this new NPDES permit, so we haven't taken any action, even though they discharge sludge from the Washington Aqueduct several times a year. Gooey sludge. 200,000 tons annually. Nobody else can do that. They had one discharge that had total suspended solids 241,000 milligrams per liter. That's goo. Now they flush this stuff into the Potomac River through a National Park, the C&O National Park, into the Potomac River, which is an American Heritage River, and it flows into the Chesapeake Bay, which is a World Heritage Site. Now, where this stuff goes into the river is right in the area where these endangered short-nosed sturgeon spawn. They are considered to be present in the river, according to the Fish and Wildlife Service and the National Marine Fishery Service. Anyway, we decided, well, we'll take their word for it, and we did some more research and this summer we filed a notice of intent to sue under the Clean Water Act. Later this summer we filed a complaint. So we now have two lawsuits in play against the Army Corps of Engineers, who operate the Washington Aqueduct.

For those of you who aren't familiar with it, maybe I should give a little bit of background. The Washington Aqueduct is where we create the drinking water for Washington, D.C. They take the water in from the Potomac River, they drop out what we call the turbidity, which is the sediments, and they use alum (aluminum sulfate) to do that. They have the settling basins where they drop this stuff out. They add a bunch of other chemicals to it. Every once in a while, they decide they need to flush it out so that they can maintain the quality of the river. In one basin, they flush it out with hoses and they flush it out with treated water. Currently they use chloramine rather than just straight chlorine to treat the water. So they are flushing chloramine water back into the Potomac River with all this sludge. In the other basins, they actually use front-end loaders to push the sludge out. If you go down to the river during the time that they are discharging the sludge back into the river, it has a very putrid odor in most instances. It basically smells like a latrine. There are fish kills, and we actually have on video-tape beavers that were caught in one of the discharges. One of the beavers died. It was floating in the river a few days after that discharge. Dead eels, all kinds of stuff.

There have been toxicity studies done that were commissioned by the Army Corps of Engineers, and they claimed that there is no toxicity to fish. Wrong. They evaluated four discharge events. In those discharge events, three of them were toxic to fish; one was chronically toxic to fish. That's buried in the study, but in their summary they say this is not toxic to fish. They're okay.

Not only that, but when we looked at the historic discharges, 100 percent of the historic discharges had higher concentrations of iron in them than the four discharge events that they evaluated. Eighty percent of the historic discharge events had higher concentrations of aluminum than the four discharge events that they evaluated. Fifty percent or more of the historic discharge events had a higher concentration of total suspended solids than the four discharge events that they evaluated. Their study did not assess the impact of their discharges on the environment in the river or the aquatic life in the river.

So there are numerous problems with what the Army Corps of Engineers is doing and what the EPA — this, by the way, is allowed by the EPA. They do have a NPDES permit. It is the most open-ended NPDES permit in the eastern part of the United States. The only limitations that they have are a few things that they have to analyze for, which are arsenic, not arsenic, but iron aluminum and total suspended solids, and they can only discharge when the river has a high flow. So that's basically the limitations that they have on their current discharge permit, which expired in 1994, and they are in the process of trying to renew the permit.

There are numerous other things that we have discovered along the way that are pretty nasty that they are doing. Their system leaks like a sieve. There are just tremendous, tremendous discharges there. It leaks from the basins themselves and then there are springs throughout the area. I mean Washington, D.C., was a swamp, and so there is still a tremendous amount of discharge that comes out that is not really monitored as adequately as it should be. We have actually sampled some of the sludge, and we found that there were numerous metals that are included in the discharge. You have arsenic, cadmium, mercury, copper, and several other metals. They occur in concentrations higher than what is normally allowed in discharges. Some of these metals are actually listed as contaminants in the aluminum sulfate; however, when they applied for their NPDES permit, they didn't really report. They said that they may be present. That's in their current permit application. Now, in previous permit applications, they actually mentioned that they might be there and they had an analysis that demonstrated that they were occurring in the sludge, but they presently do not analyze for anything other than iron or aluminum and the PH.

That's what we are doing right now. The purpose for doing this is that we thought it was important if these agencies — EPA, Fish and Wildlife Service, National Marine and Fishery Service, Army Corps of Engineers — they all have regulatory authority over all of us in our daily lives. If you are farmers, if you are miners, if you work in the timber industry, or even municipalities, they have authority to regulate us and force us to be in compliance with the environmental laws that have been passed in Washington, D.C. They are giving themselves a by in Washington, D.C. They are not in compliance with the laws that they enforce on everybody else that many of the people living in Washington, D.C. and adjacent communities wrote and passed. If it's good for Libby, Montana, or upstate New York, or Klamath Falls, then the law should be also good enough for Washington, D.C.

Technically what this does is it brings home to people in an eastern metropolitan area what the impact of the Endangered Species Act is to the community. We believe that we are going to be successful as we move forward in these lawsuits. And we think that if we're not successful, then that gives everybody else a free ride. It gives everybody else an opportunity to come back and challenge what these regulatory agencies are asking them to do.

I will tell you one of the reasons that they have not gone to a different type of disposal method to the industry standard, which is either disposing through a landfill or running it through the sewage treatment facility, one of the reasons they have not done that is because the facility itself is located in a wealthy neighborhood of Washington, D.C. It's in northwest Washington, D.C. in the Palisades above Georgetown, and the residents there do not want dump trucks driving through their neighborhoods, because it is going to impact the value of their property. Several members of Congress, both in the House and Senate, wrote to EPA asking them to revisit the draft permit that they were planning on releasing in, I believe it was 1996, 1995-1996, to go back and revisit that, because it was going to adversely impact some of their constituents. They were going to be inconvenienced by dump trucks, and the price of their water was going to go up. Currently Washington, D.C., has the lowest water rates in the Washington metropolitan area. EPA did their bidding. They did not issue their draft permit, which was going to require them to find another type of disposal method, rather than flushing it back into the river. They allowed them to continue disposing it into the river. EPA came back this spring and issued a draft permit, which would allow them to do this for another five years and asked them to try and reduce the number of total suspended solids by 30 percent. All of the rest of us would like to have that type of leeway. EPA will probably withdraw that. There have been a number of members of Congress, George Radanovich and George Allen — George Radanovich is in the House, George Allen, of course, is Virginia Senator — they have introduced legislation to prevent EPA from re-issuing a permit that is that lenient. We'll see what happens in the next Congress when that comes through.

The State of Maryland just sent a letter to EPA that says, we do not want you to issue a permit that has no restrictions on discharges. So we are getting some help from other people, and we have actually received quite a bit of press. Some of the information that I have handed out describes what television and radio programs we've been on and it also has some of the articles that have been written over the last several months. We know we're going to be successful. We hope this sets a precedent. We believe that it is going to set a precedent. I think this is an example that we have an opportunity to take them on, and I think too often we have not used that opportunity.

There is another law that is new that regulations have just been issued for, keep this in mind, it is called the Data Quality Act. This will be beneficial to all of you that are fighting to keep your property in private hands that are dealing with ESA issues, or any other type of environmental law. It is going to be crucial. It's going to be a great tool. Get the information on it. Study it and use it. Thank you.

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