Posted 9:13 am Friday, November 27, 2009
Push For Neches River Wildlife Refuge Gets Boost
By KELLY GOOCH
Staff Writer
A state agency's decision to put 15 Texas freshwater mussels on the threatened species list is one more reason why the Neches River National Wildlife Refuge should be protected, refuge supporters said.
Staff Writer
A state agency's decision to put 15 Texas freshwater mussels on the threatened species list is one more reason why the Neches River National Wildlife Refuge should be protected, refuge supporters said.
The decision was made by the Texas Parks and Wildlife Department months after it awarded a $54,000 grant to study the river's fish and mussels.
University of Texas at Tyler ecology instructor Dr. Neil Ford, who conducted part of the survey, said he looked for mussels at 27 sites last summer, from near the Lake Palestine dam down to Texas Highway 294.
"It was specifically to look at how the shape of the river affected where species were occurring, so I also did a lot trying to figure out why species were where they were," he said.
During his survey, he found 19 species of mussels -- six of which are now on the state's threatened species list.
Among the six species are the Louisiana pigtoe, Texas heelsplitter, Texas pigtoe, Southern hickorynut and Sandbank pocketbook.
"A couple of the species were quite rare, like the Southern hickorynut had only been found in one other place since the '30s," Ford said. "The Southern hickorynut and the Louisiana pigtoe are also up for federal listing, meaning they're rare everywhere."
Michael Banks, co-chairman of Friends of the Neches River and member of the Texas Conservation Alliance, also had a chance to see remnants of the mussels last summer.
He said he was kayaking along the river between U.S. Highway 79 and Lake Palestine when he found mussel shells and began a collection.
"You usually find them up on a bank. They're pretty numerous and they're easy to find and they're beautiful," Banks said.
While mussels are nice to look at, he said they also are a food source for otters and contribute to the ecosystem. That includes helping to purify water.
Banks said the mussels are great filters. They take in water and nutrients and release clean water back into the river.
Ford hopes to study these multi-functional organisms more next year.
He said he is trying to get an $11,000 grant to study mussels from Texas Highway 294 to the Steinhagan reservoir.
If he did receive the grant funds, the survey would not include geomorphology, such as measuring the shape of the river underwater, Ford said.
Litigation
The mussel findings come as the city of Dallas and the Texas Water Development Board continue efforts to invalidate the creation of the national wildlife refuge.
The process of establishing the refuge began when the U.S. Fish and Wildlife Service identified an approximately 25,000-acre acquisit
It wasn't until 2003 that it began performing an Environmental Assessment, which was followed by public hearings in 2004.
Then, in June 2006, U.S. Fish and Wildlife announced it was creating a refuge where Dallas had planned to build a reservoir called Lake Fastrill, prompting Dallas and the Texas Water Development Board to sue U.S. Fish and Wildlife.
Ken Petersen, general counsel for the water development board, has said they believe U.S. Fish and Wildlife should have done a more full-blown Environmental Impact Statement before refuge boundaries were established.
"The U.S. Fish and Wildlife Service made a decision that effectively wipes out years of state planning efforts for water supply strategies," Petersen previously said. They did not consider all ramifications to the state's water planning and water developing strategies establishing the refuge would have."
The case eventually made it to the U.S. Fifth Circuit Court of Appeals in March, where a three-judge panel affirmed the July 2008 ruling made by U.S. District Judge Jorge A. Solis in favor of the refuge.
Dallas and the Texas Water Development Board followed up by filing petitions for writ of certiorari with the U.S. Supreme Court in June to try and appeal the ruling.
Now, the U.S. Supreme Court has ordered U.S. Fish and Wildlife to respond to the petitions.
Chris Bowers, first assistant city attorney for Dallas, has said the Supreme Court's decision is "unusual" because a response is only ordered in 10 to 15 percent of cases.
"We take it as a sign that we have filed worthy petitions that contain serious issues and that our petitions are receiving serious consideration," he said. "Our chances of the court agreeing to take the case have risen. Exactly how much -- who knows."
The petitions originally were filed because the city and the Texas Water Development Board felt the decision from the Fifth Circuit Court of Appeals was contrary to decisions made by other federal courts in similar cases involving the National Environmental Policy Act (NEPA), Bowers has said.
U.S Fish and Wildlife spokesman Jose Viramontes has said the agency feels confident in the previous court rulings and that they followed the law.
After a thorough analysis of NEPA, it was determined that an Environmental Impact Statement was not needed and an Environmental Assessment was sufficient, he previously said.
U.S. Fish and Wildlife has until Jan. 4 to file a response. Once a response is filed, Dallas and the Texas Water Development Board have up to 10 days to reply.
Bowers anticipates that the Supreme Court will decide whether to hear the case within 30 to 45 days after all briefs are submitted.
If the Supreme Court appeal is successful, there is a chance Dallas would seek to invalidate any transfer of land U.S. Fish and Wildlife received, he said last month.
"All we can do is make our best case, and I think we've done that," Bowers previously said. "You don't know what other cases are going up there. It's not uncommon for the court to decline to take the case because there is another more worthy case."
No matter what the Supreme Court's decision is, Banks said he does not believe the recent mussel findings will have a great affect on the case.
The mussels being on the threatened species list means "they have the potential to become endangered. Some of them are disappearing. They know if they keep damming up these rivers they will become extinct," he said. "I don't think it will be part of the case ...» It does, (however), prove that the ecosystem on the Neches River is very unique and that it does need to be protected."
