EPWU Issues New Policy Mindful of Wildlife

A new policy regarding the clearance and dredging of irrigation drains was authorized by EPWU CEO John Balliew this past Friday. The policy was written in response to the massive destruction of animal habitat, including bird nests, and vegetation along the Montoya and Nemexas drains this past summer. That destruction was ordered by El Paso Water Improvement District Manager Jesus "Chuy" Reyes following a brush fire and a complaint by a prominent El Paso attorney. The El Paso Water Utilities was forced to help with the clean-up by prior agreements with the water district.

The extreme clear cutting of the drains resulted in an outcry from people living in that area of the Upper Valley, the El Paso conservation community and wildlife experts. Elpasonaturally had a number of posts about the operation beginning here.

John Balliew acted quickly to develop a new water utility policy that would be more mindful of animal life and vegetation. He put EPWU attorney, Lupe Cuellar, in charge of writing that policy. Ms. Cuellar worked with wildlife experts such as John Kiseda and Rick LoBello of the El Paso Zoo and Urban Wildlife Biologist, Lois Balin, along with leaders in El Paso's open space community. Very significantly she worked with utility field operations - the persons who actually do the work of maintaining the land. The new policy is written as a guide for field management.

Sensitivity to the nesting season and limiting the amount of vegetation to be cleared away during any given operation are central to the policy. Before any work can be done the EPWU's Environmental Planner will make an evaluation. That person has been identified as Valerie Provencio, the utility's archaeologist with expertise in ecology. A calendar governing the scope of operations was adopted as part of the project.

Here is the memorandum stating the policy and initialed by Balliew:

EPWU Canal Clearing Policy 101813

Chuy Reyes and Water District likely violated the Migratory Bird Treaty Act

Below is a summary of the Migratory Bird Treaty Act.  The devastating clearing of the Nemexas/Montoya Drain by Chuy Reyes and the WID#1 probably killed hummingbirds and grackles and other migratory birds.  It is still not clear whether Chuy had any authority over the drain to begin with since the agreement regarding maintaining the drain is between the United States of America (Department of Interior/Bureau of Reclamation) and the City of El Paso.

The actions by the WID are being reported to the United States Fish and Wildlife Service.

Elpasonaturally has learned that the EPWU was only cleaning up burned debris after the fire which sparked a single complaint from a prominent El Paso attorney which led to the clearcutting and dredging of the drain during nesting season. The WID then went in and began clearcutting everything forcing EPWU to have to haul away the debris from all vegetation being destroyed by the WID.

According to wildlife biologist,Lois Balin, above is a picture of true wetland plants that do absorb all kinds of toxins.  These include mainly cattails, sedges, and rushes.  "A wetland is part of the water treatment process," according to Balin. 

Below is a summary of the Migratory Act which was copied from here.  I have bolded and italicized the penalty section.  Will Chuy Reyes have to serve six months to two years for his actions? He may very well have to do so.

MIGRATORY BIRD TREATY ACT 
16 U.S.C. §§ 703-712, July 3, 1918, as amended 1936, 1960, 1968, 1969, 1974, 1978, 1986 and 1989.
Overview. The Migratory Bird Treaty Act implements various treaties and conventions between the U.S. and Canada, Japan, Mexico and the former Soviet Union for the protection of migratory birds. Under the Act, taking, killing or possessing migratory birds is unlawful.

Prohibited Acts. Unless permitted by regulations, the Act provides that it is unlawful to pursue, hunt, take, capture or kill; attempt to take, capture or kill; possess, offer to or sell, barter, purchase, deliver or cause to be shipped, exported, imported, transported, carried or received any migratory bird, part, nest, egg or product, manufactured or not. Subject to limitations in the Act, the Secretary of the Interior (Secretary) may adopt regulations determining the extent to which, if at all, hunting, taking, capturing, killing, possessing, selling, purchasing, shipping, transporting or exporting of any migratory bird, part, nest or egg will be allowed, having regard for temperature zones, distribution, abundance, economic value, breeding habits and migratory flight patterns. Regulations are effective upon Presidential approval. §§ 703 and 704.

The Act makes it unlawful to:   ship, transport or carry from one state, territory or district to another, or through a foreign country, any bird, part, nest or egg that was captured, killed, taken, shipped, transported or carried contrary to the laws from where it was obtained; import from Canada any bird, part, nest or egg obtained contrary to the laws of the province from which it was obtained. § 705.

Arrests/Search Warrants. To enforce the Act, authorized Department of Interior employees may:   without a warrant, arrest a person violating the Act in the employee's presence or view; execute a warrant or other process issued by an officer or court to enforce the Act; search any place with a warrant. All birds, parts, nests or eggs that are captured, killed, taken, offered or sold, bartered, purchased, shipped, transported, carried, imported, exported or possessed contrary to the Act will be seized and, upon conviction of the offender or upon court judgment, be forfeited to the U.S. and disposed of by the Secretary. § 706.

Violations/Penalties. According to the Act, a person, association, partnership or corporation which violates the Act or its regulations is guilty of a misdemeanor and subject to a fine of up to $500, jail up to six months, or both. Anyone who knowingly takes a migratory bird and intends to, offers to, or actually sells or barters the bird is guilty of a felony, with fines up to $2,000, jail up to two years, or both. (Permissible fines are increased significantly by the Sentencing Reform Act of 1984, as amended in 1987, which is summarized separately in this Handbook.)

All guns, traps, nets, vessels, vehicles and other equipment used in pursuing, hunting, taking, trapping, ensnaring, capturing, killing, or any attempt on a migratory bird in violation of the Act with the intent to sell or barter, must be forfeited to the U.S. and may be seized and held pending prosecution of the violator. The property is to be disposed of and accounted for by the Secretary. § 707.

Miscellaneous. The Act should not be construed to prevent states and territories from making or enforcing laws or regulations not inconsistent with the Act or which give further protection to migratory birds, nests and eggs, if such laws and regulations do not extend open seasons. § 708.

The Act cannot be construed to prevent the breeding of migratory game birds on farms and preserves, and the sale of birds lawfully bred to increase the food supply. § 711.

In accordance with the various migratory bird treaties and conventions, the Secretary is authorized to issue regulations to assure that the taking of migratory birds and their eggs by the indigenous inhabitants of Alaska is permitted for their nutritional and other essential needs during established seasons. § 712.

Is Chuy Reyes Necessary?

Agreement on El Paso Drain Maintenance 

Above is a copy of the outdated and expired agreement between the United States of America (Department of Interior/Bureau of Reclamation) and the City of El Paso.  Basically the City agrees to maintain the Nemexas-Montoya Drain since it needs the drain as part of its stormwater control.  No where is there any mention of the El Paso County Water Improvement District #1, the organization whose General Manager is Jesus "Chuy" Reyes.  Yet, when a single complaint resulted in a call to the WID, Reyes ordered the total clearing of vegetation (and with it habitat) in the Nemexas-Montoya Drain which required the El Paso Water Utilities to participate as the agent of the City of El Paso charged with stormwater maintenance and control. By what authority did Chuy Reyes order such radical clearance? 

[Are you paying attention El Paso Times?]

A similar issue involves the IBWC's dredging of the Rio Grande at the Licon Siphon north of Las Cruces.  One issue with the dredging had to do with endangered species.  In a meeting attended by Mr. Reyes, Reyes mentioned that his authority to supercede concern for endangered species was "emergency".  Obviously Mr. Reyes determines what is an emergency there being no objective criteria transparent to anyone else for defining an emergency.  But the bigger question still looms: by what right does Mr. Reyes have to order the massive clearance of the drains when the agreement never mentions the Water Improvement District.  In an Open Records request today I asked Mr. Reyes the following:

"As the agreement to help maintain the drain that we have been discussing is between the City of El Paso (the EPWU being the City’s entity) and the United States (via the Bureau of Reclamation), where does the El Paso County Water Improvement District #1 fit in?  Does WID have a separate agreement with the Bureau?  If so, may I please get a copy of that?  If not, would you please document what authority the WID has over the drain which would obligate the EPWU to assist in maintaining it."

No reply yet.

I have been in email conversation with Mr. Jeff Hild, the Legislative Director for Rep. Beto O'Rourke, regarding the destruction along the drain.  He was unaware of any federal connection that might involve Mr. O'Rourke's office as I was until now.  I wrote him the following email attaching the agreement which you read at the top of this post:

Jeff,
Attached is the outdated and antiquated agreement which requires EPWU to help clean the drain in question.  The agreement is between them and the United States of America because the United States of America owns the drain!  You’ve got your federal hook!
The agreement was written prior to the popularization of environmental concerns. It is pre-Rachel Carson.  It was also written when there was probably more farm land in the Upper Valley than residences.  We now know that vegetation plays a key role in cleaning up water as it moves to a river. Besides vegetation and animal habitat provide much for the human spirit – something that can’t be easily quantified.  A new agreement must show more environmental sensitivity, proper and ongoing land and habitat management.  
You may be told that it was good to remove the salt cedars.  Yes, that’s true; but they should have been removed and replaced with native cottonwoods or other trees over the long-run and never during nesting season.  As this was federal land, then as a civil engineering friend of mine pointed out: “If federal funds or federal property is involved you could not disturb the area during nesting season if threatened or endangered species are present.”  Several Audubon people have told me that the Southwest Willow Flycatcher was present.  Perhaps we ought to investigate what kind of fine or jail term Chuy Reyes should serve.
I hope that the Congressman’s office will get involved especially with the EPWU and John Balliew, the CEO, and Robert Andron, the Attorney for the utility.  I know that Beto knows both well. They should be encouraged to draft a more sensitive document that will maintain the drain while protecting the plants and wildlife and the ecosystem services that they provide.  Working with Mr. Reyes is probably pointless and may even be unnecessary as the agreement again is between the United States and the City of El Paso. When I asked Mr. Reyes if he might be interested in mitigation, he responded: “I am not interested in replanting native vegetation. The drain will be maintained the proper way, the way the City of El Paso and EPWU are required to do so, this is an agriculture drain and not a habitat."
I look forward to your response at your very first convenience please.
Jim Tolbert

Mr. Reyes may be acting without authority and it may be that he really is unnecessary for many agreements.  In a side issue also reported here at elpasonaturally, getting water to the Rio Bosque seems to have been held up for a long time by Chuy Reyes.  (Perhaps he has to use the rest of the water to help his friends in Hudspeth County keep their reservoirs filled. Are you paying attention El Paso Times?)

A group of persons interested in resolving the water issue at the Bosque has been holding clandestine meetings at the home of Judy Ackerman in 2013. Those who are part of this hush-hush group include from UTEP: John Sproul, Scott Cutler, Vanessa Lougheed, John Walton, etc.; John Balliew; from the IBWC: Gilbert Anaya, Rebecca Little Owl; Mike Landis from the Bureau of Reclamation; David Will from TCEQ; Friends of the Rio Bosque; Ruben Vogt from the County; Charlie Wakeem, and others including Chuy Reyes. 

At the last meeting it was brought up that the license with the TCEQ which has prevented some irrigation from the Bustamante directly to the Bosque may be moot anyway.  In fact, a bid to do the pipe directly from the Bustamante to the Rio Bosque may go out to bid in August.  The Water District would be cut out of the deal.  Chuy Reyes was not at the meeting.  My question with the Bosque and more pertinently with the Drain is this: Is Chuy Reyes necessary?  Does he really have the authority that he claims to have? To whom are he and the Water District accountable?