by Glynn Wilson

ROEBUCK SPRINGS, Ala., Sept. 25 — The U.S. Fish and Wildlife Service has proposed a solution to the Corps of Engineers and the city of Birmingham to build a temporary dam out of sand bags and then construct a permanent structure to control the flow of water from the spring pool behind the Roebuck tennis courts into Village Creek.

The permit was expected to be approved Thursday afternoon and work is expected to start Friday morning, one week after a beaver dam and man-made dam were removed illegally by a crane operator, not a backhoe, as previously reported, according to sources on the fish-kill scene.

Sources who are familiar with the area and its history say beavers have constructed a dam in the same spot on and off for years. And well before the endangered watercress darter was discovered there, city officials would periodically rip out the beaver dam, supposedly based on a fear that the pond would overflow and flood the tennis courts.

Today, with the Endangered Species Act and other regulations on wetlands — and with the full knowledge of the presence of an endangered fish species in the pond — that destruction would not be allowed under federal law or state regulations without a permit.

To naturalists, a beaver dam is actually the perfect natural solution to controlling the water flow from the pool to the creek, if the tennis courts and drainage pipe had to be built on that location at all.

According to a federal official on the scene today, however, the spot is not really where you would want to build a tennis court if you had it to do over again with modern knowledge of science. It is on a high spot between the pond and the creek.

“What a stupid place to put a tennis court,” the biologist said, who will remain anonymous since the Atlanta field office has still not concluded its investigation and released a report, or even so much as a statement about what the plan is for the area, yet.

According to multiple sources, the intent of Regina Nummy, the director of Roebuck-Hawkins Park, and her superiors at the city, was most likely to tear out the beaver dam, which had been done in the past by park and city officials. So some of the culpability for destroying the entire dam rests with the crane operator.

It is still not known whether the operator who actually removed the dam was a city employee or a private contractor, which could still be an issue in any investigation or lawsuit.

Biologists sampled the area today and found at least 100 watercress darters still alive, so at least the destruction of the dam did not wipe out the entire local population.

But the incident still shows an appalling incompetence on the part of park management and makes one wonder what kind of an educational program is set up for city workers — or private heavy equipment operators — when it comes to working around ecologically sensitive waterways.

There is a consensus building among federal, state, and local sources that heads should definitely roll as a result of this disaster — and that a legal price should be paid.

by Glynn Wilson
Editor and Publisher

If Regina Nummy, the director of Roebuck-Hawkins Park, has not already resigned her position — for her ignorant order telling Birmingham city workers to illegally excavate wetlands without a permit and to remove a dam on a Village Creek spring pool — she should be fired immediately.

Glynn Wilson

A yellow-crowned night heron feeding on the section of Village Creek that intersects the Roebuck Golf Course, just down stream from the destroyed dam.

It may take the discovery phase of a lawsuit and depositions to find out who came up with the dimwitted idea to remove the dam in the first place, as well as how the order was carried out, since city officials have now clammed up and are not talking in expectation of a lawsuit.

What is clear is that what Ms. Nummy told The Birmingham News about the need to remove the dam to prevent damage to the tennis courts due to flooding is just a lie. What is not clear is why she would concoct such a story. But ignorance is no defense in a court of law.

What we know is this.

Last Friday, Ms. Nummy somehow obtained a work order for a crane operator to drive into a protected wetland that was home to the largest population of endangered watercress darters on the planet. Without a federal or state permit or permission of any kind, the heavy equipment operator removed a beaver dam built on top of a small man-made dam that helped the Roebuck Springs pool hold water in part of Village Creek.

Over the weekend, most of the water ran out of the pond downstream through a drainage pipe leading under the Roebuck tennis courts. The shock of all the water rushing out of the pool forced at least 1,000 darters, most likely way more than that, to hide in the grass, where they died of suffocation.

There is no doubt that this constitutes a blatant violation of the U.S. Endangered Species Act, and the Locust Fork News-Journal is calling on the Federal Fish and Wildlife Service and the Alabama Department of Conservation to move with all deliberate speed both to restore the habitat and to hold the responsible parties legally accountable.

This story is not just about some little rare fish. The destruction of its habitat will no doubt have a ripple effect throughout the ecosystem and have a negative impact on bird populations as well.

In recent times this independent online news organization has focused more on national issues and crimes of the Bush administration, specifically on the Bush Justice Department’s political prosecution of former Alabama Governor Don Siegelman, than local stories such as this. But we have extensive experience covering science and the environment going all the way back to the 1980s.

And this particular spot holds a special place in our hearts. It is a remarkable place to experience the wonders of nature in the very center of an urban area.

For the past four years, I have joined other wildlife photographers to keep a watchful eye on the special population of yellow-crowned night herons that nest in the area around the Roebuck Golf Course along Village Creek. We have taken hundreds of photographs of these beautiful creatures during that time frame.

And right now, in addition to being concerned about the endangered fish, we are also concerned that the destruction of this dam and the habitat for the fish will have a negative impact on the bird populations in the area.

In addition to the herons, there are often wood ducks feeding in the area as well as great egrets, kingfishers, red-shouldered hawks, great blue herons, and red-winged blackbirds.

In fact, my photograph of a red-winged blackbird on Village Creek just downstream from the destroyed dam was recently chosen for an educational poster showing the 50 most common bird species in Alabama. Of 50 pictures chosen, submitted by birders from all over the state, nine or 10 are mine.

You can see a picture of the poster and order free copies from this link on the Legacy Partners for Environmental Education Website.

We would also like to see the local television news shows and the local newspapers do more to get to the bottom of this environmental tragedy.

For the past three days in a row, The Birmingham News environmental reporter has published the same lie about the tennis courts flooding, apparently by taking information on the phone from the office and not actually visiting the site in person.

Any empirical observation by any lay person will show that the tennis courts have not flooded and have not been damaged by flooding. It is not enough for a news organization to take the word of a city official in a case like this. There is a responsibility to get off the phone, away from the e-mail, and out of the office to go look at the scene. Anything less is irresponsible journalism.

by Glynn Wilson

ROEBUCK SPRINGS, Ala., Sept. 24 — It may take a lawsuit to get to the bottom of why and how the director of a city park came to destroy a dam in the habitat of endangered fish and illegally order the excavation of wetlands without a permit on Village Creek, since Birmingham officials are now mum in the growing controversy over the watercress darter fish kill.

Stock Photo/Glynn Wilson

No sign of the yellow-crowned night herons in Village Creek on Wednesday

Regina Nummy, the director of Roebuck-Hawkins Park, has not been seen in her office at the newly renovated gym in East Birmingham for the past two days. A secretary-receptionist referred media inquiries to Kenneth Blackledge at Legion Field, strangely, since he has apparently now taken over as head of the park and as the chief point of contact for the major controversy now receiving a widening circle of news coverage.

He did not return a phone message to contact us Wednesday afternoon.

The Roebuck Springs fish kill was the top story at 6 p.m. on Fox 6 News Wednesday night. And indications are that other national news organizations are researching the story.

Tom MacKenzie, the spokesman in Atlanta for the U.S. Fish and Wildlife Service, told me Wednesday that the federal agency issued an emergency order Tuesday and applied for a permit for city workers in Birmingham to build a temporary dam out of sand bags to begin restoring the pond on Village Creek, the healthiest of four locations where the darters exist in Jefferson County.

The agency told city officials not to use any more heavy equipment near the pond or do anything else to cause more damage to the ecologically sensitive area.

“We’re still in the middle of the investigation,” MacKenzie said. “But judging by the before and after pictures I’m seeing, it’s a real tragedy.”

During the day on Wednesday, after bringing in a load of sand to begin the sand-bagging repair operation, agency scientists determined that damming the creek back up may cause more damage. Dying vegetation upstream would release an excess of nutrients into the water and cause a low oxygen situation, which could kill more fish.

Glynn Wilson

A pile of sand for sand bags behind the Roebuck tennis courts.

MacKenzie said both civil penalties of $1,000 for each dead fish — which could be as high as 10,000 fish and $10 million — as well as criminal penalties for those responsible, are still possible recommendations in one of the worst fish kills in the region that can be directly traced to specific human activity.

Aquatic kills in the past have resulted in fines and restitution of between $25,000 and $1.5 million for private individuals and companies. Apparently there are not that many examples of local government officials so blatantly and moronically running afoul of the U.S. Endangered Species Act.

Meanwhile, the Alabama Rivers Alliance and the Black Warrior Riverkeeper environmental groups are considering their legal options, sources say, and will issue statements soon. A lawsuit and judgement against the city could provide funds for local habitat restoration work.

The Birmingham News once again published the false cover-story Wednesday saying the beaver dam and man-made berm were destroyed to stop the tennis courts from flooding. But another close inspection of the tennis courts and the surrounding area today revealed no evidence of flooding or damage from flooding.

Some local bloggers have passed around an old Google map satellite photo showing what appears to be mud on the courts that presumably came from water overflowing the pond. It was published in our comments section Tuesday.

But an in-person, on-the-ground inspection today shows those dark markings to be dirt gathered in low spots on the courts where water tends to stand in pools when it rains. The courts are not used that much and no one sweeps the pools of water away after it rains, so over time, the spots become dirt-stained.

The tennis courts are actually on a high point on the property. One observer pointed out that if the tennis courts had flooded, the entire parking lot would have been under water, since it is several feet lower. And there have been no such floods in the past five years since the Birmingham area has faced drought conditions.

Joe Eldridge, who has been playing tennis at the Roebuck courts periodically for the past seven years, said he has never known the courts to flood.

I asked him Wednesday while he was hitting balls with his young son, “Have you ever seen the courts flood?”

He smiled slyly and said, “Uh, nope. Never. Not sure where that’s coming from.”

The bright blue-green watercress darter with striking red and orange markings can grow up to about two inches long. They are found in Powderly’s Seven Springs, the Watercress Darter National Wildlife Refuge in Bessemer and Glenn Springs, also in Bessemer, as well as the Roebuck Springs pond on Village Creek.

According to this history published in the BhamWiki online encyclopedia, there have also been sightings in Pinson.

Scientists say the Roebuck location was the largest and healthiest site, until Friday, when the unauthorized destruction of the dam by city workers killed at least 1,000 and perhaps as many as 10,000.

Birmingham Mayor Larry Langford and Don Lupo of the Mayor’s Office of Citizens Assistance were overheard Wednesday saying the city could not comment due to the expectation of “a major, massive lawsuit.”

Glynn Wilson

A new view from Wednesday of the fish kill zone in Roebuck Springs on Village Creek.

Illegal Dam Removal in Roebuck Springs Under Investigation

Glynn Wilson

The scene of destruction at Roebuck Springs on Village Creek, where at least 1,000 endangered fish were killed by the illegal removal of a dam.

by Glynn Wilson

ROEBUCK SPRINGS, Ala., Sept. 23 — Ignorance kills.

Regina Nummy, the director of Roebuck-Hawkins Park, apparently took it upon herself to authorize a crane operator (not a backhoe as previously reported) to dig its way into a protected pond on Village Creek last Friday and destroy a dam, without contacting federal or state officials for a permit or permission of any kind. The incident appears to be a clear violation of the federal Endangered Species Act, resulting in the death of at least 1,000 endangered watercress darters.

On the crime scene behind the tennis courts in East Birmingham Tuesday, along with a U.S. Fish and Wildlife Service investigator and two Alabama Department of Conservation officers, attorney Mark Martin of the Black Warrior Riverkeeper environmental group indicated that whoever authorized the destruction of the dam should be prosecuted.

Getting rid of the dam was a “significant and dangerous draw-down” of the water level that clearly killed the fish, he said. “It looks like a criminal act to me. I think it should be prosecuted.”

A family of beavers built a dam last summer on top of a man-made rip-rap berm as part of the storm runoff drainage system designed for the development, creating a small waterfall which led to a drainage pipe. From there Village Creek cuts through Roebuck Golf Course on its way southwest. Both the natural and artificial barriers were clearly removed with heavy equipment judging by tracks in the stinking mud left behind.

Without knowing what they were doing, the workers who destroyed the dam killed at least a thousand endangered watercress darters and thousands of snails important to science and the ecosystem.

But the decision resulted in a vibrant creek and pond of about 50 yards wide and 100 yards long, leading to an old grist mill and water tower by the old boys reform school, being reduced to a trickle and a puddle by Monday, with dead fish and snails stranded in the mud and grass.

A federal wildlife biologist and two state biologists were surveying the scene on Tuesday, taking measurements and gathering samples of dead species. The feds focused on the endangered darters, while the state officials collected snails.

Rob Tawes, supervisor of the Fish and Wildlife Service’s Daphne Field Office, and the federal investigator on the scene, told me Tuesday the agency is seriously looking into the fish kill.

“We’re in fact-finding mode. It’s something that we’re extremely concerned about,” Tawes said. The agent on the scene declined to be identified or interviewed, but said the Atlanta field office would be putting out a statement soon.

Glynn Wilson

Thomas Tarpley and Michael Buntin with the Alabama Department of Conservation examine dead snails in the mud left behind from the illegal dam removal.

Michael Buntin, an investigator with the state Conservation Department, said the site is an important place where endangered wildlife can survive in the heart of an urban area. The creek and pond are surrounded by a golf course on one side, a road leading to a juvenile detention facility on another, and tennis courts, a community center, and a parking lot.

“It shows that nature can survive even in the middle of a city, until something like this goes wrong,” he said. “It looks like the draw-down of the water by the removal of the dam caused a serious impact to me. It’s certainly a surprise that this would be allowed to happen considering the importance of the site.”

The darters themselves, bright blue and spotted with red and orange when alive, and known to exist only in four locations around Birmingham, had fled into the grasses upon the shock of rushing water flowing out of the pond, dooming them to die when the grasses dried up. Scientists say they may have lived if they had gone with the flow downstream, but that is not their nature. When threatened, they hide in the grass.

“Watercress darters thrive in spring pools,” Bernie Kuhajda, manager of the fish collection at the University of Alabama, told a reporter for The Birmingham News. “This was the ideal habitat for them.”

Dr. Patrick O’Neill, Fishes of Alabama

A rare watercress darter, etheostoma nuchale, unique to Birmingham.

Ms. Nummy admitted to the News reporter that she authorized the dam’s removal without consulting federal authorities, claiming the pond has flooded the park’s tennis courts in the past.

Yet I play golf there regularly and periodically check in on the family of yellow-crowned night herons that nest nearby and have never seen the water rise over the tennis courts. And there is no evidence that “thousands of dollars” in damages have been repaired as a result of this alleged flooding, as she told the News.

Ms. Nummy, who was not in her office Tuesday and was reportedly in a meeting downtown for most of the day, told the News it “never crossed [her] mind” to consult the U.S. Fish and Wildlife Service or anyone else.

“I did not realize it was an issue until [a USFWS official] called a little while ago,” she reportedly said.

Don Lupo, of the Mayor’s Office of Citizens Assistance, told the News the city has been committed to protecting the darter, including posting signs along the spring below the pool notifying everyone of a ban on pesticides near the water. But on Monday, he was not aware that the dam removal had killed any darters.

“We have orders not to get into that creek and not to do that stuff,” he said.

Causing the death of fish listed as endangered species under federal law is punishable by fines of up to thousands of dollars for each one killed, which is one of the reasons the feds collected as many as possible. Criminal charges may also be brought against individuals involved in the fish kill.

It is not yet known who operated the equipment that destroyed the dam, whether it was city workers or contracted out to a private operator. But one investigator on the scene said that will be looked into as part of any national or local investigation.

Glynn Wilson

The same scene at Roebuck Springs on Village Creek earlier this year.

For more photos, check out this slide show. Look for the icon that makes it pop up in full screen mode for the best viewing. Use the mouse to roll over the text to read the full cutline.