U.S. Fish and Wildlife Service Takes Legal Action for Killing of Endangered Fish
June 24, 2010
Birmingham, Alabama – This morning, the U.S. Fish and Wildlife Service (Service) issued a Notice of Violations to the City of Birmingham for killing 11,760 watercress darters, an endangered species protected by the Endangered Species Act, and also for injuries to some 8,900 additional darters. The Service is seeking a civil penalty totaling $2,975,000. This is one of the largest fish kills in the history of the Endangered Species Act.
The Alabama Department of Conservation and Natural Resources (“ADCNR”) also has a claim against the City for $1,062,786.21 for the death of watercress darters, plus the deaths of more than two million individuals of a protected species of snail. The ADCNR is contemplating a lawsuit against the City to collect that claim.
The Service’s action stems from an incident that happened September 19, 2008, when a City maintenance crew removed a beaver dam from the Roebuck Springs pool in Hawkins Park. The crew also breached an underlying earthen dam that formed the spring pool where more than 20,000 of the small endangered fish lived. Breaching the dam quickly drained the spring pool and stranded and killed thousands of watercress darters among a mass of drying aquatic plants. The massive fish kill resulted in the loss of more than half of the largest known population of this species.
Watercress darters are listed as endangered under the Endangered Species Act and are a trusted resource protected by Alabama law. The only populations in the world are found in five spring pools and spring brooks in Jefferson County, Alabama, within the metropolitan area of Birmingham.
*Our ultimate goal at Roebuck Springs is to restore and protect the habitat of the watercress darter. That’s always been the plan,” said Cynthia K. Dohner, Southeast Regional Director, U.S. Fish and Wildlife Service. “We want to do what’s best for the fish, and our work is far from over.”
Early negotiations with the City of Birmingham in an effort to restore and maintain the habitat of the watercress darter were partially successful. Initially, the City accepted responsibility for breaching the earthen dam and quickly cooperated on the installation of a sandbag dam, aerator, water quality monitoring device and, later, installation of the permanent water-control structure and informational signs. The Service position is that much more needs to be done to protect this endangered fish species, which continues to be threatened by City-controlled facilities and the surrounding urbanization.
The City has declined to take several additional actions that would help restore and protect the watercress darter at Roebuck Springs, including identifying the recharge area for Roebuck Springs and taking actions to protect the recharge waters from contamination, diverting or filtering storm sewer discharges into Roebuck Springs pool or diverting or filtering runoff from the City’s recreation center parking lot into the spring run, improving the habitat for the species in the spring run and in a second significant pool along the spring run, or conducting a public education effort about the species.
The City has 45 days to respond to the Notice of Violations by paying the proposed civil penalty, seeking informal negotiations with the Service, or filing a Petition for Relief pursuant to 50 Code of Federal Regulation 11.12. If the matter is not settled, the Service will eventually issue a formal assessment, which the City can appeal to an Administrative Law Judge, who will eventually hold a formal trial-type hearing on the matter in Birmingham.