For the Birds

Are 18 birds in the nest worth 21 billion gallons of water down the drain?

In matters of appearance, the southwestern willow flycatcher is no dodo: Barely half an ounce, with pale yellow and gray feathers, it's as photogenic as any sparrow. But when it comes to Darwinian fitness, the flycatcher comes up short.

Consider its relationship with the brown-headed cowbird. The cowbird, a far craftier species, is fond of laying its eggs in flycatcher nests. And cowbird moms typically give their young a jump on that whole survival thing -- by pushing flycatcher eggs out of the nest and to a certain death.

A smart bird wouldn't put up with it. But flycatchers don't even seem to notice. They just raise the cowbird chicks as their own.

Not surprisingly, cowbirds are flourishing, while flycatchers -- who used to nest in a region that spanned from California to Texas -- have earned a spot on the endangered species list. Scientists at the U.S. Fish and Wildlife Service believe this country's flycatcher population has fallen to less than 1,000 pairs.

Last year, 18 flycatchers nested at Horseshoe Lake, the basin created in 1946 by damming the Verde River north of Phoenix. While the lake has been dry in recent summers, making for ideal flycatcher habitat, Salt River Project uses it in wet seasons as a reservoir.

And so when the rains came this spring, the trouble began. For while the flycatcher can't seem to take care of itself, it's attracted a powerful protector: the Center for Biological Diversity.

While the Center is one of the most litigious environmental groups in the nation, this time, it clearly has a point: SRP does not have the proper permit to flood the flycatchers' habitat at Horseshoe. And that, oddly enough, has nothing to do with birds -- it's all about fish. (More on that later.)

But even though the Center for Biological Diversity may be right, it's making an argument that, in this dry desert, couldn't be more contentious. The Center says, protect the flycatcher at all costs, even if that means dumping water. That would be sacrilege even if it was a small amount. But SRP insists it would have to dump nearly half the contents of Horseshoe Lake, thereby wasting enough water to supply the population of Scottsdale for a year.

In any case, the Center says that if SRP doesn't figure out a way to dry out the flycatchers' home, the utility will have destroyed the habitat of a beleaguered bird.

And that means violating the Endangered Species Act.

And that means big trouble.


The Center for Biological Diversity is no fan of compromise. The Tucson-based activist group is known for suing first and asking questions later. Thanks to the Endangered Species Act, the strategy has been wildly successful.

Inspired by the near-demise of a much bigger bird, the whooping crane, Congress authorized the act as we know it in 1973. Ironically, it gave a near-unanimous vote to legislation that would prove incredibly controversial.

The law didn't just provide funding to preserve vanishing species, although U.S. Fish and Wildlife was given $123 million for that task in 2003. A much bigger impact has come from the act's teeth -- namely, a provision that made it illegal to "take" an endangered species.

By "taking," Congress didn't just mean killing. The law specifically barred harming and harassing a species, or even destroying its habitat, a cornucopia of possibilities that's stopped many a Western development. Plus, the Center for Biological Diversity found that it could sue the U.S. Fish and Wildlife Service any time it failed to properly protect a species -- and get the government to pay its legal fees.

The act has made critics on both sides of the political aisle. Conservatives, angry about how even seemingly insignificant animals like frogs or snails trump property rights, push for reform, even as environmentalists insist that the government still isn't doing enough to protect the endangered animals. (More than 1,200 species are now listed as endangered; only nine have "recovered" under the government's ministrations.) Fish and Wildlife staffers, meanwhile, have complained to the General Accounting Office that they're too busy responding to lawsuits to do much good.

To some Fish and Wildlife staffers and businessmen alike, one of the biggest villains has been the Center. And the flycatcher has been one of the Center's particular favorites. In 1993, the group successfully sued Fish and Wildlife to get it listed as an endangered species, says Michelle Harrington, the center's rivers program director.

The listing, made official two years later, opened up the government to a host of lawsuits. The Center sued twice to force Fish and Wildlife to mark areas as the flycatcher's critical habitat. Because flycatchers like to nest near dams, the Center subsequently sued the U.S. Army Corps of Engineers over activity at Lake Isabella in southern California, the Bureau of Reclamation over its actions at Lake Mead on the Arizona/Nevada border, and the Secretary of the Interior over dam expansion at Lake Roosevelt, which is east of Phoenix on the Salt River. The final suit ended with the feds coughing up $20 million to purchase and maintain flycatcher-friendly zones elsewhere in Arizona, compensating for the habitat lost to dam expansion.

Officials at Salt River Project, which uses dams at Roosevelt and Horseshoe to store water during wet seasons, saw what was coming. During the drought that's plagued Phoenix in the last decade, flycatchers had flocked to Roosevelt Lake's dried-out perimeter and nested in its trees. A total of 375 birds nested there last summer, making Roosevelt one of the largest flycatcher habitats in the nation.

Horseshoe attracted just 18 birds, says SRP's water engineering and transmission manager, Paul Cherrington. But that, too, was enough to cause concern.

There was no problem during the drought; the utility didn't have excess water, and the reservoirs were empty. But SRP knew the lakes would be needed for storage if rain fell. That would mean flooding the flycatchers' habitat, dramatically curtailing their breeding potential and, likely, incurring the Center for Biological Diversity's wrath.

With that in mind, SRP completed a "Habitat Conservation Plan" for Roosevelt in 2003. Basically an agreement between U.S. Fish and Wildlife and the utility, the plan allows SRP to flood the lake every summer in exchange for a $25 million to $29 million commitment to help the flycatchers. Because of the plan, the company has spent the last two years buying up wilderness areas along Arizona rivers and preserving them specifically for the flycatcher. (Among other things, that means killing any cowbirds that take up residence, Cherrington says, but that's okay since the cowbirds aren't endangered -- yet.)

So this spring, when rain finally interrupted Phoenix's decadelong drought, the plan was set for Roosevelt and mitigation nearly complete. The lake was flooded, but the feds had given the plan their okay.

That was not true at Horseshoe.

For three years, SRP has been working with Fish and Wildlife on Horseshoe's conservation plan, Cherrington says. Along with the City of Phoenix, which has rights to much of Horseshoe's water, SRP has agreed to spend about $13 million to buy and maintain flycatcher habitat elsewhere.

But SRP can't finalize the plan, Cherrington says, because Fish and Wildlife officials say that the utility must also help the endangered fish in the Verde River. And the two parties, Cherrington says, are "at loggerheads on the fish issue."


The "fish issue," as Paul Cherrington explains it, seems nothing short of fishy. Apparently, the federal government and the Arizona Game and Fish Commission have been trying to reintroduce some endangered fish -- razorback suckers, Gila topminnow, and Colorado pikeminnow -- into the Verde River, upstream of the Horseshoe Dam.

But the project has been a miserable failure. According to Fish and Wildlife Service records, the two government agencies stocked more than 12 million young suckers in the Verde from 1981 to 1991, but found little evidence that many were surviving to adulthood.

After 1991, the agencies switched to farm-bred adults. Still no luck: More than 22,000 suckers were introduced, but Fish and Wildlife monitors indicate that as few as 1 percent have survived.

One of the biggest problems, Fish and Wildlife biologists now theorize, is the game fish in Horseshoe Lake. Catfish, sunfish and bass were stocked at Horseshoe for anglers. But instead of staying put in the lake, they've made their way upstream, terrorizing their endangered counterparts and eating their eggs.

Cherrington says the feds blame the problem, in part, on dam operations, arguing that raising and lowering the water is driving the sport fish upstream. SRP doesn't necessarily buy it, he says. But Fish and Wildlife now wants the utility build a barrier to stop the sport fish.

The cost of such a structure, Cherrington says, is unfathomable. "It would be like building a dam," he says. "It's just too expensive." SRP is willing to contribute to the government's fishery program, he says. But a fish guard is economically impossible.

And, as SRP is careful to point out, the company didn't put the sport fish in Horseshoe to begin with. For while the government is telling the utility to fix the problem, it's actually the government that's responsible for introducing the game fish in the first place.

For four decades, the Arizona Game and Fish Department stocked Horseshoe with sport fish, with the feds' full blessing. Game and Fish only stopped the program in the 1970s with the advent of the Endangered Species Act, says Chuck Paradzick, the agency's aquatic habitat program coordinator.

"This was all well-intentioned," Paradzick says. "These are the species that are back East. And people said these are the fish we want to catch here, too."

But while the sport fish stocking has mostly stopped, Paradzick admits that U.S. Fish and Wildlife -- the same agency that's telling SRP to fix the fish problem -- still works with the Game and Fish Department to stock one nonnative fish, trout, in parts of the Verde. Last year alone, the federal government kicked Arizona $5 million through its Sport Fish Restoration program.

Steve Spangle, a field supervisor with Fish and Wildlife, admits that there is an innate "tension" in the competing fish populations. His agency, he says, is intent on reaching agreement on all parts of SRP's Horseshoe plan, including the fish. He won't discuss details, although he disagrees with Cherrington's characterization of an impasse.

But Spangle admits that this spring's rains could be deadly for the flycatcher. Horseshoe Lake is now inundated. The willows that the flycatchers used for nesting last year are all but submerged.

The flycatchers winter in Costa Rica, but they began arriving back in Arizona May 1. And in typical flycatcher fashion, they didn't seek out willows that weren't under water. In these early weeks, at least, they've also failed to commute to the $20 million of habitat that the feds purchased just for them after the Roosevelt Lake lawsuit, or the $25 million in habitat that SRP has been adding to the mix.

Instead, they went right back to their old haunts and perched at the top of the nearly submerged trees.

Nesting there will likely prove impossible. Since the flycatcher's life span is usually only about five years, even one year without successful breeding could put a major dent in their number.

The Center for Biological Diversity saw one solution: The Salt River Project should lower the dam and send water streaming down the Verde River. That would give the flycatchers their old home back.

It would also waste a lot of water.

"It would be a total loss for us," says SRP's Cherrington. To get the water low enough to make flycatcher nesting possible, he says, SRP would have to dump about half the lake: 67,000 acre-feet of water, which is 21 billion gallons, or roughly enough to sate the needs of 67,000 families of four for an entire year.

The Center says it wouldn't have to be a waste. If SRP used its reserves at Horseshoe first, instead of water from Roosevelt, Horseshoe's water level would drop. But even that wouldn't be enough, Cherrington says. SRP would still have to dump 22,000 acre-feet -- about a third of the water in question. And, because of complicated water-rights issues, using Roosevelt first would cost SRP millions of dollars.

Something had to give. And it wouldn't be SRP.

Cherrington says he made that clear. "I asked Fish and Wildlife, 'How can you explain that we're spilling water that should be stored?' That would not be a pretty picture."

He knew, he says, that Fish and Wildlife would fold. "Here we're in our worst drought, and yet we're being forced to spill water for these birds? They don't like that kind of political heat."

Sure enough, Fish and Wildlife offered a compromise. In February, it suggested SRP apply for a special "recovery permit" that would allow the water to stay in the lake this summer to study its effect on the bird.

It issued the permit in late April, just in time for the flycatcher's arrival.

You don't have to be an environmental activist to see a bit of a reach. After all, if research was really needed on that subject, as Fish and Wildlife claims, why not do it at Roosevelt Lake, which is also flooded for the first time this year? Even SRP's Cherrington tells the story as a stare-down, and one where the feds blinked.

Spangle, of Fish and Wildlife, insists the deal was aboveboard. "They're going to be contributing to the survival of the species by helping us to learn more about how it'll react and behave under certain circumstances," he says. SRP is even hiring environmental consultants, to the tune of about $100,000, to monitor the situation.

The Center for Biological Diversity is threatening to sue.

In a letter to Fish and Wildlife, dated April 7, Harrington notes that the water at Horseshoe is only about 5 percent of SRP's total reservoir capacity. Meanwhile, she says, "the Southwestern Willow Flycatcher is in jeopardy of extinction." Her letter vows to sue if the water isn't released.

"The real story is, they're not done with their negotiations," she says. "They needed a way to keep the water without violating the Endangered Species Act."

As logical as her argument is, it's still a tough sell. It's easy to imagine the outrage: An environmental group is suing to force SRP to dump -- or give away -- enough water to supply 67,000 families? Just to save 18 stupid birds?

Harrington is undaunted. "The PR on this is not my concern," she says. "My concern is the continued existence of the willow flycatcher. . . . The cumulative effect of what's happening at Roosevelt this year, and what's being allowed to happen at Horseshoe, could just have a devastating impact on the bird. And I don't think anyone is taking it seriously."

Still, the Center makes no mention of the situation on its Web site and has issued no press release. Harrington says they're talking to lawyers, but she doesn't sound ready to file.

Indeed, despite the threat of litigation, Cherrington speaks freely. He understands the strength of SRP's case in the court of public opinion. After all, the utility has already committed to $25 million for mitigation for Roosevelt and another $13 million for Horseshoe -- all to save a bird that's congenitally incapable of saving itself.

And that doesn't even get into the fish issue.

"Wherever I make a presentation about this, without exception," Cherrington says, "people talk about how crazy it seems."

And so the water sits in Horseshoe Lake, and so flycatchers continue to arrive from Costa Rica. They're looking for their old nesting spots; what they're finding instead is enough water to sate Scottsdale for a year.

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