Wednesday, Jan. 26, 2005 | 11:10 a.m.
A national environmental group is threatening legal action to block the city of Mesquite's work to re-channel the Virgin River, but the city says the work is needed to protect public infrastructure and private property following damaging floods two weeks ago.
The Center for Biological Diversity, a Denver-based group, says the city is going beyond what would be needed for flood response and is using the flood as a pretext to avoid compliance with national environmental laws.
Federal officials, while reaffirming Mesquite's right to do emergency work in response before and after the flood, are warning that attempting to move the river channel could be a violation of the environmental laws.
At least five species federally listed as endangered, including the willow flycatcher, a bird, and the Virgin River chub, a fish, are native to the Virgin River and Mesquite area.
City officials say the work to re-channel the river is needed now to protect against feared future damage from runoff from additional flooding. They confirmed that bulldozers and dynamite have been used to carve a path for the river mostly parallel to its original channel.
The work on public land halted Tuesday, at least temporarily, after federal officials formally questioned the scope of flood-response activity in Mesquite. Officials said flood response efforts on private land appear to be continuing.
City and federal officials plan to meet today to clarify what can, and can't, be done without violating the federal environmental rules.
The flooding in Mesquite began the week of Jan. 9. By the end of the week, city officials had estimated more than $1 million in damage to public infrastructure, particularly to one of the city's main thoroughfares, Mesquite Boulevard. About 80 homes also suffered damage, including some that were completely lost.
Mesquite City Manager Bryan Montgomery said Tuesday that the fear in his town of 16,000 is that the river's wrath may have created opportunities for further damage.
"The river actually moved," he said. "Once the flood water receded, the river was in a different position, still threatening homes. We believe we are still in an emergency.
"The threat is still imminent considering the spring runoff that is coming."
While Mesquite could potentially face a fine for the channeling effort that has already been made, Montgomery said a primary concern of city officials is that the federal authorities will order them to stop work.
"If we cannot convince them (of the legality of the work), we will have to stop and seek permits, which will take months and months," he said. "Tomorrow will help us decide."
Montgomery said another 80 homes face the possibility of more damage. Officials also are concerned that the Charles Hughes Middle School, once about 500 feet but now only about 200 feet from the river, could be threatened.
"If we get any kind of spring runoff, it's coming to those homes again," Montgomery said. "If they stop us, it will be their responsibility."
Two of the actions that the city has done are particularly troubling to some federal officials. One is remove native species near the former river bed, a process Montgomery said workers were keeping to a minimum. The other is to straighten the old channel to avoid the kind of flooding that affected Mesquite.
"Where you don't have any vegetation in a watershed, you have nothing to slow down the flow," said Helen Hankins, interim field manager for the Bureau of Land Management's Las Vegas office.
Carving a straight channel will allow water to flow much faster down the river, Hankins said.
"I'm very concerned from both the endangered species standpoint and hydrologic standpoint that in their efforts to address the flood threat, they may have exacerbated the situation," she said.
The U.S. Fish and Wildlife Service echoed Hankins' concerns.
Cynthia Martinez, a Fish and Wildlife biologist, did not return phone calls Tuesday, but said in a letter to the U.S. Army Corps of Engineers that Mesquite's post-flood channel work could be a violation of federal law.
Immediate, emergency recovery work is allowed by federal law, but not "long-term rehabilitation efforts," she said in her letter, which was signed "for Robert Williams, (Fish and Wildlife) field supervisor."
Williams, who plans to meet with Mesquite officials today, said his agency understands the imperative for short-term response to the flooding.
"The city of Mesquite, working under the jurisdiction of the U.S. Corps of Engineers, is taking action to protect private land," Williams said. "It is an emergency repair situation to protect private land and other resources. There are provisions under the Clean Water Act... that the city can do that.
"Longterm and the overall restoration of the river is something we believe should go through the regular permitting process."
The sentiments of activists with the Center for Biological Diversity were more strongly expressed. Daniel Patterson, an ecologist with the group, said the environmental organization is ready to sue, if necessary, to stop the river work.
"The city of Mesquite is doing work that goes way beyond the emergency work needed for the flood," Patterson said. "We're just trying to get this stopped. There is a lot of habitat there on the Virgin River. ... They need to slow down and talk to some biologists and everyone else with an interest in the river.
"Our first concern is putting a cooling off period with the work they're doing with bulldozers right now. The interest in the Virgin River is a national interest. They (city officials) shouldn't unilaterally be making decisions on relocating the river."
He said existing federal law should require the halt to the re-channeling efforts.
"It would be a real disgrace if we had to go to court to get the law enforced," Patterson said. "Clearly the Fish and Wildlife Service, the BLM and the U.S. Corps of Engineers need to enforce the law. It's really up to the government."
Hankins said the goal of all parties intersects in one area: the need to stabilize the existing river bed.
"The habitat has been changed quite a bit," Hankins said. "The river channel itself changed locations, migrated 300 to 500 feet closer to Mesquite. That in itself is a pretty drastic habitat modification in a short period of time.
"Clearly the fix is not going to occur in one day or one week. We need to have a strategy in place soon to have some stabilization there before we have spring runoff. We need to be responsible and come up with a solution."
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