August 26, 1998
RE: Addendum to PEER July 1, 1998 Complaint Regarding Violations of Federal Laws
Please accept this letter as an addendum to the
July 1, 1998 complaint submitted by Public Employees for Environmental Responsibility (PEER) against named officials within the Texas Parks & Wildlife Department (TPWD): Dr. Gary L. Graham, Director of the Endangered Resources Program and Kirby Brown, Director of the Private Lands Enhancement and Public Hunting Program.
You will find inclosed:
Copies of pictures showing destruction of Limpia Creek's riparian habitat caused by this project.
Copies of the response from PEER Freedom of Information Request to the U.S. Fish & Wildlife Service and the Open Records Request to the TPWD.
Copies of newspaper articles following the filing of PEER's July 1 complaint.
Copy of a map of the project area.
Updated information regarding the initial complaint is as follows:
- Knowingly authorized a construction project that violated Section 404, 33 U.S.C. Section 1344 of the Clean Water Act.
A representative from the U.S. Army Corps of Engineers has visited the site at the request of a public employee who called to inquire about the laws regarding destruction/channelization of a public waterway. The Corps initial recommendation was that the wetland site destroyed was less than 1 acre thus a 404 permit was not required. However, our own onsite inspection indicates that the area destroyed within the flood plain of Limpia Creek was at least 11-22 acres (see enclosed map), and that at least 6 acres of Limpia Creek has been diverted (rechannelized) with levees (see photos). There is also evidence of extensive past channelization work along an extensive stretch of Limpia Creek. PEER believes that TPWD should have applied for a 404 permit prior to authorization of this construction project because it destroyed a significant amount of very important and endangered Chihuahuan Desert wetland habitat.
- Knowingly authorized a construction project that violated Section 301, 33 U.S.C. Section 1311 of the Clean Water Act.
All updated information continues to lead PEER to believe that these state officials violated Section 301 of the Clean Water Act by causing a pollution discharge into Limpia Creek. This construction work was authorized by TPWD prior to applying for and obtaining a National Pollutant Discharge and Elimination System (NPDES) permit as required by Section 301 of the Clean Water Act. Our measurements indicate that more than 5 acres of the Limpia Creek flood plane was bulldozed thus TPWD should have applied for and obtained an NPDES stormwater permit for construction activity from the U.S. EPA. We are presently arranging for our own aerial photography to refine this estimate. Because land disturbing activities occurred adjacent to and in Limpia Creek, a water of the United States, involved the disturbance of more that five acres and because stormwater runoff was discharged from that area without a permit, the Clean Water Act was violated.
- Knowingly authorized a construction project that violated the Migratory Bird Treaty Act.
All updated information continues to lead PEER to believe that these state officials violated the Migratory Bird Treaty Act by authorizing a construction project during the nesting season of migratory raptors and songbirds. Witnesses have informed PEER that there were nesting migratory songbirds in the Limpia Creek's wooded understory that was destroyed. In addition, information obtained from public employees, birders and a local newspaper indicate that state officials knew that the state threatened common black hawk nest was active (with at least one fledgling) prior to and during the construction project (article with picture enclosed). Bulldozing did occur directly below the nesting common black hawks. PEER information indicates that TPWD failed to adequately survey this area for active nesting birds before destroying this segment of Limpia Creek. Section 62.002 of the Texas Parks and Wildlife Code, TEX. PARKS & WILD. CODE ANN. Section 62.002 (a) (3) (Vernon Supp.1998), and the Migratory Bird Treaty Act prohibits any person from disturbing or destroying "the eggs, nest, or young of a bird that is not a game bird."
- Knowingly authorized a construction project that violated the Section 9 (g), 16 U.S.C. Section 1538 (g) of the Endangered Species Act.
All updated information continues to lead PEER to believe that these state officials violated the Endangered Species Act by authorizing a construction project that destroyed habitat for the federally endangered southwest willow flycatcher. Our information indicates that TPWD failed to implement a biological survey to determine whether endangered southwest willow flycatchers were utilizing this Limpia Creek riparian habitat. In addition, TPWD failed to contact and initiate Section 7 Consultation with the U.S. Fish & Wildlife Service.
In addition, TPWD has admitted that they utilized federal funds to implement this project (see enclosed AP article). Thus, these officials violated Section 7 (a) (2), 16 U.S.C. Section 1536 (a) (2), and implementing regulations, 50 C.F.R. Section 402.14 (a) of the Endangered Species Act by failing to consult with the U.S. Fish & Wildlife Service.
- Knowingly authorized a construction project that violated the intent and purposes of the Texas State Endangered Species Act.
All updated information continues to lead PEER to believe that these state officials violated the intent and purposes of the Texas State Endangered Species Act. This construction project totally destroyed the understory habitat of state threatened common black hawks that are nesting immediately above the construction site. All of the understory, with the exception of a few mature trees were destroyed. TPWD was aware that state threatened black hawks were nesting in the area.
- In addition, if federal funds were used in connection with designation or implementing this project, these officials violated obligations imposed pursuant to Section 7 (a) (2), 16 U.S.C. Section 1536 (a) (2), and implementing regulations, 50 C.F.R. Section 402.14 (a) of the Endangered Species Act which requires consultation with the U.S. Fish & Wildlife Service to ensure that the federally funding action did not affect any species listed as threatened or endangered.
If TPWD used Pittman Robertston funds for this project then these officials also violated the Pittman Robertson Act. Because federal funds were utilized (AP article reports that $2,500 of federal funds have been spent on this project so far, and TPWD projects spending another $22,000) by TPWD, PEER believes that these state officials violated provisions of the Section 7 of the Endangered Species Act, National Environmental Policy Act and if Pittman Robertson funds were used violated the Pittman Robertson Act. TPWD failed to write and release an environmental assessment or an Environmental Impact Statement and failed to hold public hearings regarding this project. In addition, Pittman Robertson Funds cannot be expended in such a way that would adversely affect non-game birds and mammals.
Section 6 Funds were illegally utilized by TPWD for this construction project with knowledge (see open records information indicating questions raised by Bill Sewell, USFWS staff, during review of project application) that Section 6 Funds cannot be used for species that are not listed as threatened, endangered or a candidate species under the federal Endangered Species Act. In addition, these funds cannot be used in ways that will harm listed species in the absence of consultation with the USFWS.
TPWD has refused to release a copy of the Landowner Incentive Plan and other public records regarding this construction project even though state (see enclosed employee time sheets) and federal public funds were utilized. Enclosed you will find a copy of TPWD's letter asking the Office of the Attorney General for permission to exempt this Plan and other public records from disclosure under the Texas Open Record Act.
You will find enclosed a copy of the July 1, 1998 Associated Press article written by Peggy Fikac that reports Gary Graham to say that no trees or shrubs were removed and that the black hawks were no longer in the nest. However, photographs/video and witness accounts prove otherwise. Trees and shrubs were removed and at least one 10-day old black hawk nestling was in the nest as of June 26, 1998.
In addition, the Fikac article also reported that Graham said that this "project was approved by an agency advisory committee that includes a representative from the U.S. Fish & Wildlife Service and a person who at the time was on the Audubon Society's national board." PEER information indicates that the representative of the U.S. Fish & Wildlife Service, Bill Sewell, did not vote to approve this project. In fact, Sewell refused to vote and commented that he did "not think this species [black hawk] is eligible for Section 6 or LIP [Landowner Incentive Program] money because it is not federal listed or a candidate species (and never was and not likely to be) [see enclose open records information]."
Also is enclosed an article by Keely Coghlan that was printed in the Odessa American on July 30, 1998. Keely reported Bonnie McKinney to say that less than 3/10 of an acre of the creek and less than three miles on the creek sides were cleared. PEER measurements and witness accounts prove this to be a false statement. PEER estimates that at least 11 acres of land was bulldozed, including at least 6 acres within Limpia Creek channel and potentially 22 total acres within the Limpia Creek flood plain.
Also attributed to Graham are statements that the bulldozing of Limpia Creek would benefit the common black hawks because they prefer running streams rather than "stagnant" pools. However, PEER believes that this project does not restore this natural stream course nor does it coincide with standard recommendations for Common Black Hawk habitat restoration which emphasize reductions in human disturbance and restoration of a more natural and more complex stream course of pools formed by flood debris and intermittent riffles. Standard references on this raptor also emphasize that much of its diet is lizards, snakes and small birds not obligately linked to water. Because of this, clearing out of the understory vegetation at the Limpia Creek site has likely eliminated much of the prey base at Texas' best known Common Black Hawk site.
Roland (Ro) Wauer, Author and retired Naturalist for Big Bend National Park, 512/572-3400
Clyde Jones, Texas Tech University, 806/742-2472
Tom Curry, Sierra Club member, 915/837-2311
Jim Sage, Sierra Club member, 915/364-2362
PEER will supply you with the names of the public employees with knowledge of this project upon your request.
PEER is a national public interest organization representing public employees in state and federal land management and pollution control agencies who are committed to responsible stewardship of our natural resources and the faithful enforcement of environmental laws.
If you require more information about the basis for this complaint, would like to view a copy of the video tape showing the destruction of Limpia Creek's riparian habitat caused by this project, or copies of any of the standard black hawk references mentioned above, please contact Texas PEER at the above listed address and telephone number.
Director, Texas PEER