December 1, 2000

Carl Soderberg, Director

Caribbean Environmental Protection Program

U.S. Environmental Protection Agency

1492 Ponce De Leon Avenue

Suite 417

San Juan, Puerto Rico 00907-4127

Re: Proposed Waiver From Secondary Treatment Requirements Under CWA Section 301(h) for the Regional Wastewater Treatment Plant at Aguada, Puerto Rico (NPDES PR 0023736)

Dear Mr. Soderberg:

Please enter into the public record for the above-referenced matter these comments of Environmental Defense, on behalf of our almost 300,000 members nationwide, and in support of partner organizations in Puerto Rico (Comite de Ciudadanos en Defensa del Ambiente, Centro de Accion Ambiental, Aguada Citizens Committee, CORALations, Liga Ecologica del Noroeste, Mona H2O, and Liga Ecologica del Rincon) and the United States (Surfrider Foundation and the Surfers’ Environmental Alliance). Many of our members have personal interests in Puerto Rico and surrounding waters, and in the overall health and integrity of the marine ecosystems likely to be affected by the issuance of the subject waiver.

We respectfully urge you – in the strongest possible terms – to deny the proposed waiver from the Clean Water Act’s general requirement for secondary sewage treatment for the Regional Wastewater Treatment Plant (WWTP) located at Aguada (the so-called "Aguadilla Regional WWTP"). However, we also urge your agency to do everything in your power to help find the resources to remediate in full the very serious problems related to the discharge of inadequately treated sewage on this island and elsewhere in the U.S. Caribbean.

1). Comprehensive solutions to human waste problems in the U.S. Caribbean must be found

The current situation is intolerable. For decades the United States has treated both the Virgin Islands and Puerto Rico as poor relations in terms of public investment in water and sewer infrastructure. The failure to achieve even barely adequate standards in sewage treatment, the inability to eliminate bypasses and spills from sewage collection systems,

Mr. Carl Soderberg

December 1, 2000

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and the pending secondary waiver applications from both governments, has resulted directly from this neglect. Correcting this neglect will require a complete analysis of human waste management options, including non-discharge opportunities and tertiary treatment. Issuing the proposed waiver would unacceptably institutionalize the chronic mistreatment of Puerto Rico and its natural resources.

2). Coral reefs and related essential fish habitats must be fully protected

As the work of the U.S. Coral Reef Task Force has made clear, the coral reefs and ecologically linked ecosystems in U.S. Caribbean are among America’s crown jewels. These marine ecosystems also serve as critically important "essential fish habitats (EFH)," as defined by the Magnuson-Stevens Sustainable Fisheries Act and the Caribbean Fisheries Management Council (CFMC). These fragile resources deserve the

investment of much greater than average levels of public funding, and require special care in assessing federal actions that threaten them.

In addition to the coral reefs themselves, the CFMC has formally identified EFH in the U.S. Caribbean to include salt marshes, mangrove wetlands, intertidal flats/salt ponds, soft bottom lagoons, mud flats, sandy beaches, rocky shores, sea grass, non-vegetated bottoms, algal plains, live bottoms, geologic features and the water column. The CFMC also identified for special protection the most important subsets of EFH, termed "habitat areas of particular concern (HAPCs)," including estuaries and nearshore reefs and other hard bottoms (NMFS, 1999; CFMC 1998). Other HAPCs are likely to be designated in the coming months; they will undoubtedly include other specific categories of habitat types, as well as known spawning aggregation sites for reef fishes.

3). No EFH consultation has been conducted, as required by federal law

A wide variety of EFH exists in the immediate area of impact of the Aguada discharge, and in its zone of influence, including HAPCs (hard bottoms). Yet, inquiries with the National Marine Fisheries Service have revealed that no EFH consultation has been initiated. (NMFS staff were unaware that the proposal to issue the waiver had been noticed.) It is inarguable that a detailed analysis of the impacts of the proposed federal action on this EFH is mandatory before any action can be taken. In the absence of a completed consultation with NMFS, the proposed action is illegal.

4). Proper consultation will result in a finding of likely damage to EFH, that must be avoided and mitigated

We believe that consultation will reveal that the proposed waiver is inconsistent with protecting EFH. Recent analyses of habitat use patterns among reef fishes (e.g.,

Mr. Carl Soderberg

December 1, 2000

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Lindeman et al., 2000) make clear that most species utilize a variety of habitats during their life histories, including shallow-water hard and soft substrates that are quite

sensitive to damage from inadequately treated sewage. Protecting and restoring reef-associated systems will require special care to address threats to the full array of marine and estuarine habitat types in the region.

Many of these essential fish habitats are threatened directly and indirectly by failure to adequately treat sewage. Direct impacts of inadequately treated sewage include effects on demersal, planktonic and benthic fishes and invertebrates, mediated by toxicants, oxygen-demanding substances, nutrients and pathogens. Impacts on sensitive larval stages may be particularly acute. Impacts of nutrient enrichment on naturally nutrient-poor, but productive reef habitats can be profound, inducing ecological cascades driven by alteration of algal and macrophytic plant communities.

Moreover, the proposed action at Aguada WWTP would open the door for a much greater threat to EFH, as the flows into the plant expand above the currently permitted 8 MGD toward the design capacity of 16 MGD. That expansion would catalyze additional development in the region, which is already in the planning stages. The negative impacts of that growth and development on EFH have not been assessed, minimized or mitigated, even though such impacts would, without question, directly result from the pending federal action.

5). Impacts to local human populations are unacceptable

Impacts on local human populations also can result from bypassing and inadequate treatment of human wastes. In fact, the absence of appropriate indicators of overall human pathogenicity for sewage in tropical environments argues for exceptional care in dumping sewage into marine or estuarine waters in the region. This is especially true given the important and traditional linkages to the water for both recreational and economic uses, and the incipient upswing in tourist development in Western Puerto Rico. Both the direct livelihood and the economic future of many Puerto Ricans are directly dependent on high quality marine environments.

6). Proper procedures for issuing waivers under CWA Section 301(h) have not been followed

In addition to the overall threats that exist to Puerto Ricans and to EFH, we submit that the proposed action is inconsistent with the requirements of federal law governing the issuance of such waivers. We join our partners on the island in questioning the legality of the process related to the proposed waiver, and adopt their comments in that regard by reference.

Mr. Carl Soderberg

December 1, 2000

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7). The proposed waiver is inconsistent with regulations implementing section 301(h)

Waivers under 301(h) can only be granted under specific conditions that are presumed to protect important ecological functions, and human health. Among many other things, affected areas must maintain water quality adequate to support "balanced, indigenous populations of shellfish, fish and wildlife," and "allow recreational activities, in and on the water." (33 USC 1311 (h)(2)) Any issued waiver must also not cause or contribute to water quality standard violations. (33 USC 1311 (h)(2)) As demonstrated clearly in the attached technical comments, no evidence exists that those requirements or others in the regulations have been or can be met in the case of the Aguada WWTP.

8). Deny the proposed waiver, but solve this problem

The proposal to issue the waiver for the Aguada WWTP is the first in a series of requests for similar actions around Puerto Rico, all of which are very likely to constitute direct and indirect threats to EFH and to the people of Puerto Rico. Issuing these waivers will not solve the problems, but rather institutionalize the neglect of the U.S. government of our responsibilities in the U.S. Caribbean.

The time has come – finally – to commit to accepting and fulfilling our nation’s role as stewards of the wondrous marine ecosystems of the U.S. Caribbean. This can only be achieved by bringing the standards for sewage treatment and other pollution control programs up to and beyond national norms. Given the ecological sensitivity of reef ecosystems, and the uncertainty involved in protecting Puerto Ricans from sewage-derived pathogens, a proper solution will almost certainly require new and bold thinking, and the commitment of significant national funding.

Building effective partnerships with local governments and local people requires an investment. Deny the waivers – but help also solve the problems!

Thank you for the opportunity to comment.

Sincerely,

 

 

Douglas N. Rader, Ph.D. Robert Howarth, Ph.D. Daniel J. Whittle

Senior Scientist Program Head Senior Attorney

Mr. Carl Soderberg

December 1, 2000

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Kenyon Lindeman, Ph.D. Michelle A. Duval, Ph.D. Azur Moulaert

Senior Scientist Staff Scientist Campaign Coordinator

Attachment

Ms. Jeanne Fox, EPA

Mr. Andy Mager, NMFS

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