July 1, 1998
RE: Complaint of Violations of Federal Laws
This complaint is 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
Mac Sproul is also being named in this complaint because he was the property owner who implemented the construction work to bulldoze Limpia Creek. However, our information indicates that Mr. Sproul may have been unaware of alleged violations and was probably acting in response to a TPWD Landowner Incentive Plan.
PEER alleges that these officials have:
- Knowingly authorized a construction project that violated Section 404, 33 U.S.C. Section 1344 of the Clean Water Act.
- Knowingly authorized a construction project that violated Section 301, 33 U.S.C. Section 1311 of the Clean Water Act.
- Knowingly authorized a construction project that violated the Migratory Bird Treaty Act.
- Knowingly authorized a construction project that violated the Section 9 (g), 16 U.S.C. Section 1538 (g) of the Endangered Species Act.
- Knowingly authorized a construction project that violated the intent and purposes of the Texas State Endangered Species Act.
- 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.
On June 19, 1998, PEER was contacted and informed that a one mile segment of Limpia Creek had been bulldozed and destroyed directly below nesting state threatened common black hawks. PEER immediately contacted the TPWD to notify them of the destruction and to file a complaint. PEER was surprised when told by TPWD staff, Peggy Horner, that TPWD had authorized the destruction as part of TPWD's Landowner Enhancement Program. Ms. Horner suggested that we contact Bonnie McKinney, the immediate field supervisor for the project, for more information.
PEER began to investigate further and found that the area destroyed contained active migratory songbird nests and an active Common Black-hawk nest. In addition, we found that Limpia Creek's riparian wooded streamside habitat that was destroyed was considered to be very rare by TPWD and the U.S. Fish & Wildlife Service. Further we found that none of the applicable permits or consultations required by the provisions of the Clean Water Act, the Migratory Bird Treaty Act or the Endangered Species Act had been acquired by TPWD.
Thus PEER files this complaint because these state officials authorized a construction project under the Landowner Habitat Enhancement Program and/or the Landowner Incentive Program that bulldozed and destroyed a significant segment of Limpia Creek, adjacent to Davis Mountains State Park, just north of Fort Davis, Texas. These state officials are aware of requirements of the Clean Water Act, the State and Federal Endangered Species Acts, the Migratory Bird Treaty Act, the Pittman Robertson Act and the National Environmental Policy Act.
Pictures have been taken of the construction site on Limpia Creek and we will forward them to you as soon as we receive them.
PEER alleges the following facts as the basis for this complaint:
- These state officials violated Section 404, 33 U.S.C. Section 1344 of the Clean Water Act by authorizing a construction project that destroyed important and endangered wetland habitat on Limpia Creek. This construction work was authorized and implemented prior to applying and obtaining a Section 404 permit as required by the Clean Water Act. This portion of Limpia Creek serves as a valuable and rare wetland resource in an otherwise very dry desert ecosystem Both state officials are aware of the Clean Water Act's permitting requirements under Section 404.
- These state officials violated Section 301, 33 U.S.C. Section 1311 of the Clean Water Act by authorizing a construction project that caused 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. Section 301 of the Clean Water Act prohibits the discharge of pollutants from a point source into waters of the United States. Pursuant to Environmental Protection Agency rules, 40 C.F.R- Sections 112.26 (a)(1)(ii) and (b) (14) (x), the disturbance of land surface as part of a construction activity (including clearing and grading) collectively involving the disturbance of more that five acres in an area is defined as being such a point source discharge. 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.
- These state officials violated the Migratory Bird Treaty Act by authorizing a construction project during the nesting season of migratory raptors and songbirds. The work was completed directly below an active state threatened common black hawk nest. As of June 26, the nest contained at least one, and possibly two, 10 day old black hawk fledgling(s). In addition, the endangered cottonwood willow riparian plant community destroyed along Limpia Creek was known to contain active nests of other important migratory songbirds. 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." Through construction activities that occurred in and adjacent to Limpia Creek, the nest of young fledglings of numerous nongame birds were disturbed and/or destroyed, including state threatened common black hawks, bells's vireos, yellow-billed cuckoos, vermilion flycatchers, summer tanagers, yellow warblers, yellow-breasted chats, blue grosbeaks, ash-throated flycatchers and elf owls.
- These state officials violated the Endangered Species Act by authorizing a construction project that destroyed habitat for the federally endangered southwest willow flycatcher. The southwest willow flycatcher is known to inhabit the cottonwood desert willow riparian plant community that is only found in the southwestern deserts of the United States. PEER 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.
Section 9 (g), 16 U.S. C. Section 1538 (g) of the Endangered Species Act provides "It is unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense defined in this section," which includes "take" of an endangered species.
If TPWD expended federal funds for this construction project then 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.
- 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. Black hawks depend and forage on aquatic species found in the riparian wooded streamside habitat of Limpia Creek. All of the understory, with the exception of a few mature trees were destroyed. Limpia Creek was totally bulldozed from bank to bank. TPWD was aware that state threatened black hawks were nesting in the area. In fact, TPWD has indicated that this "Landowner Enhancement Program" was initiated for the benefit of the black hawks.
- There is some indication that federal funds may have been utilized for this construction project. Yet we have been unable to make this determination because TPWD claims that information regarding this Landowner Enhancement/Landowner Incentive Program is exempt from the Texas Open Record Act. If this investigation finds that federal funds were expended to destroy this segment of Limpia Creek, then these state officials may have violated the provisions of the Section 7 of the Endangered Species Act, National Environmental Policy Act and 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.
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, please contact Texas PEER at the above listed address and telephone number.