AGUA intends to sue developer for taking Golden-cheeked warblers

June 27, 2008

AGUA, along with 3 other organizations, intends to sue INTCO Dominion Partnership (INTCO) for continuing violations of the Endangered Species Act (ESA) that are causing the "take" of the endangered Golden-cheeked warbler. Notice was sent to INTCO today on behalf of AGUA, Greater Edwards Aquifer Alliance, Helotes Heritage Association, and Citizens' Alliance for Smart Expansion.

The take is the result of land clearing and construction on a tract of land in northwest Bexar County adjacent to Camp Bullis. The notice states that clearing and construction has destroyed, modified, and degraded habitat of the golden-cheeked warbler, including occupied habitat, and thereby harmed the species.

The above-named parties intend to sue, pursuant to Section 11(g) of the ESA, to enjoin the ongoing violations. The parties also give notice of intent to sue for likely unauthorized take of endangered kart invertebrates. Construction over and near caves and karst features inhabitated by karst invertebrates harms individuals and disrupts essential cave and karst feeding, breeding, and sheltering habitat by sealing over and filling features.

Because INTCO has not obtained an incidental take permit from the FWS, the take that is occurring is unlawful under Section 9(a) of the ESA. The citizen suit provision of the ESA authorizes any person to bring suit on his own behalf "to enjoin any person . . . who is alleged to be in violation of any provision of this Act or regulation issued under the authority thereof."

This 60-day notice letter puts INTCO on notice that the parties intend to sue under this provision of the act. However, it our desire that US Fish and Wildlife Service and INTCO take immediate action to halt any further take of endangered species and take steps to remedy to the destruction of habitat that has already occurred, (including, where appropriate, the imposition of civil and criminal penalties).

Warblers under pressure

The Golden-cheeked warbler (GCW) was listed as an endangered species under the federal Endangered Species Act on May 4, 1990. The endangered GCW breeds only in the mixed evergreen-deciduous woodlands of central Texas. Much of the local habitat has already been eliminated due to suburban developments, especially in the area from Austin to San Antonio.

A Golden-cheeked warbler Recovery Plan was prepared by the U.S. Fish and Wildlife Service and released in 1992. One point of the plan was that habitat must be protected if viable breeding populations are to be maintained.

Golden-cheeked warbler breeding area showing recovery regions

Although no comprehensive survey has been taken of the habitat and GCW populations in the area, data from literature and interviews with land managers indicate that fewer than 300 pairs of birds are currently protected in the region. It is estimated that 1,000 pairs of birds would be needed to provide population viability in recovery Region 6 that includes Bexar County.