June 24, 2010
Birmingham, Alabama - This morning, the U.S. Fish and Wildlife
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 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 trust 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
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
Frequently Asked Questions
Notice of Violations for the Killing of Watercress Darters
Updated: June 2010
Q1: What is a watercress darter?
A1: The watercress darter is a small fish, a little less than two
inches long when mature. It lives among aquatic vegetation in
shallow spring ponds and spring runs. It is known to live in only
five locations in the world, all in Jefferson County, Alabama,
within the metropolitan area of Birmingham. Pursuant to the
Endangered Species Act (ESA), it was listed as an endangered
species in 1970. The danger of extinction of this species is
very high. Prior to September 19, 2008, the Roebuck Springs
population was thought to be the largest single population, with
an estimated population of more than 20,000 individuals.
Q2: Why are they endangered?
A2: The watercress darter is endangered due to its small
population size, restricted geographic distribution, specialized
habitat requirements, and the persistence of threats to its
habitat from point and non-point pollution, development, and
chemical spill events.
Q3: How many fish died in the September 2008 incident? How did you
come up with that number?
A3: Three days after the event, Dr. Bernard Kuhajda, an expert on
the watercress darter from the University of Alabama,
conservatively estimated 11,760 individual watercress darters died
when the spring pool was dewatered. The estimation was based on a
count of dead darters in a sample of the dewatered area. The
entire dewatered area was measured and calculated by Dr. Paul
Johnson and Michael Buntin of the Alabama Department of
Conservation and Natural Resources (ADCNR). Using these two pieces
of information, the total number of dead watercress darters was
Q4: How were the remaining fish in the pond affected by the
A4: Their habitat was severely modified and degraded by the
killing or scouring-out of aquatic vegetation and a flushing-out
of detritus that the fish depend upon for food and shelter, and
they were forced into a much smaller volume of aquatic habitat,
where they were preyed upon by an exotic crayfish that had been
allowed to inhabit the pond. As a result, more fish
were probably killed and reproduction was severely depressed in
the species for most of a year.
Q5: What is the basic charge against the City?
A5: The U.S. Fish and Wildlife Service alleges that the City
knowingly violated the prohibition in the ESA of take of an
endangered species. In this case, the Service alleges that the
City committed takes of all of the darters in the pond (over
20,000), because take, as defined in the ESA, includes not only
the killing, but the harming or harassing an endangered species.
Q6: What does the ESA mean by "harm" or "harass?"
A6: The Service's regulations, which were upheld by the Supreme
Court in 1995, define "harm" to mean an act which actually kills
or injures wildlife. Such act may include significant habitat
modification or degradation where it actually kills or injures
wildlife by significantly impairing essential behavioral patterns,
including breeding, feeding or sheltering. Similarly, "harass"
means an intentional or negligent act or omission which creates
the likelihood of injury to wildlife by annoying it to such an
extent as to significantly disrupt normal behavioral patterns
which include, but are not limited to, breeding, feeding, or
Q7: What is the current status of the watercress darter at Roebuck
A7: The population is recovering, but it is not fully recovered.
The population remains very vulnerable to pollution from the
surrounding city streets, storm sewers, parking lots, golf course,
neighborhoods and businesses.
Q8: Why are you seeking a civil penalty from the City of
The watercress darter is on the brink of extinction. It's the job
of the U.S. Fish and Wildlife Service to protect these highly
endangered fish. The multiple killings of this endangered species
destroyed more than half of the largest known population and made
life very difficult for the survivors. This has complicated and
may compromise full recovery of the species to its former
population size. It may also leave it more vulnerable to diseases,
due to loss of genetic diversity. The severe impact of these
violations to the species calls for a large civil penalty.
Although the City accepted responsibility for breaching the dam,
installed a permanent water-control structure to restore the pond,
and placed signs to warn people not to harm the fish or its
habitat, the City has declined requests by the Service to perform
a number of additional actions that would help the species recover
and protect the species from additional risks of harm at Roebuck
Springs. Our ultimate goal is to conserve this fish. An
appropriate civil penalty should deter future violations.
Q9: What is a Notice of Violations?
A9: The Notice of Violations informs the alleged violator of what
laws or rules were allegedly broken and includes a proposed civil
penalty. It serves to initiate a civil penalty proceeding.
Q10: How much is the proposed penalty for Birmingham and how did
you come up with that figure?
A10: The Service is seeking a civil penalty of $200 for each fish
killed by the City ($2,352,000) and $70 for each additional fish
harmed by the City's actions ($623,000) for a total proposed
penalty of $2,975,000. This figure is broken down in pages 5-8 in
the Notice of Violations. It is important to understand that this
proposed penalty is subject to adjustment up or down through the
civil penalty hearings process. The process is
governed by rules at 50 CFR Part 11.
Q11: What happens if the City doesn't agree with the proposed
A11: The City has 45 days to either pay the proposed civil
penalty, undertake informal discussions with the Service
(negotiations), or to file a Petition for Relief under the rules
at 50 CFR 11.12. If the matter is not settled, the Service,
through the Field Solicitor in Knoxville, Tennessee, will issue a
final assessment. The City can then pay the assessed civil penalty
or, within 45 days, ask for a hearing before an administrative law
judge (ALJ) in the Office of Hearings and Appeals (OHA)
of the Department of the Interior. The ALJ will hold a trial-type
hearing in Birmingham at a date determined by the ALJ, in
consultation with the parties. The hearing process may take
anywhere from a few months to a year. Any decision by the ALJ can
be appealed to a board of appeals within OHA. The board's decision
will be final for the Service, but the City will have the right to
appeal if it is assessed a penalty and does not agree
with the decision. If, after the conclusion of the litigation, a
penalty is owed, the City will have to pay it.
Q12: How will the money be used?
A12: Collected civil penalty money must be deposited in the United
States Treasury, where it is placed into a special fund used for
rewards to informants, taking care of live wildlife and plants
seized from violators, and for distribution to the states for
endangered species programs under cooperative agreements with the
Service. It cannot be used directly for restoration of the
watercress darter population without further Congressional
appropriation. However, the ADCNR could, possibly, receive a
grant from the fund for helping the watercress darter through its
endangered species cooperative agreement with the Service.
Q13: What has the City done to restore watercress darter habitat
at Roebuck Springs?
A13: At the request of the Service, immediately following the
dewatering event, the City began cooperative efforts to restore
the habitat in the Roebuck Springs pool. These efforts included
construction of a temporary sandbag dam, initiation of water
quality monitoring, installation of an aerator to improve oxygen
levels in the pool, and design and installation of a permanent
water control structure. The City has installed signs around the
spring pool and along the spring run denoting the presence of
endangered species habitat which has allowed for the development
of a vegetative buffer.
Q14: What demands have the City not met?
A14: Some of the unmet demands the Service made to the City
include the identification of the recharge area for Roebuck
Springs and a program of real estate acquisitions or regulatory
actions to protect the recharge water from pollution; some
combination of purchases and permanent protections of watercress
darter habitat; the establishment of a darter
conservation fund; establishment of a public education program
regarding the darter; and addressing concerns at Roebuck Springs
about water pollution from storm sewers and parking lot runoff.
Under the criteria determining the size of a civil penalty, the
more the City does to protect and restore the darter habitat and
population on its own, the more the Service can reduce the size of
the civil penalty.