Blight on the banks: Officials hope saving a rare mussel could restore the Black River
An eight-mile stretch of the Black River in Southeast New Mexico is home to a rare species at the center of a debate on water rights and conservation.
Only about 48,000 Texas hornshell mussels survive in the river just south of Carlsbad.
The Texas hornshell is the last native mussel species in a state that used to have eight.
Historically, the hornshell’s range extended throughout New Mexico, Texas and Mexico, and the species was plentiful in the Pecos River near Carlsbad and Roswell.
Today, it is only found in Eddy County, and some parts of West Texas.
In New Mexico, the mussel occupies just 12 percent of its historic range in the state.
Typically, hornshells are found in narrow areas of rivers and streams, with fine-grained sand and clay or gravel on the bottom.
They prefer areas with a slow current, allowing them to get a foothold, and not be washed away.
Texas hornshells, or popenaisas popeii, can grow to seven inches long, with a green or brown outer shell.
A muscular “foot” inside the shell allows the mussel to move, and internal siphons draw the water in and out, collecting microscopic animals, bacteria and algae for the mussel to feed upon.
This process of filter feeding means the mollusk is known as an indicator species as to the health of the Black River.
“Freshwater mussels are one of the most imperiled animals in the U.S.,” said Taylor Jones, endangered species advocate at the Wild Earth Guardians, a Santa Fe-based nonprofit environmentalist organization. “They’re indicative of a bigger problem. If the mussels start going downhill, it’s an indication of problems in the ecosystem.
“What happens in the river filters down to the mussel. What they’re telling us is that the river is becoming fractured. It’s a problem for a lot of species.”
That fracturing, or separating sections of the river from another, is due mostly to commercial and industrial uses and damming, Jones said. She said it disrupts the water flow and endangers natural habitats.
Listing the mussel as an endangered species could curtail such uses, and potentially return the Black River to its past strength, she said.
But landowners along the Black River worry a listing could also impose federal regulations, impeding water rights held for generations.
A stretch of the suffering river runs right through Jim Davis’ property.
He owns Black River Machine and Water Sales in southern Carlsbad, and said he’s drilled about 25 groundwater wells to pump water for sales, mostly to oil and gas companies for extraction operations.
Davis said he will never pump from the Black River, not only because of the plight of the mussel but to protect what he called a fragile ecosystem.
“I’m not going to do anything to be detrimental to the health of the river,” Davis said. “I do care. I’m not the problem. I’m not going to do something stupid to endanger the river.”
To list or not to list?
As the Black River suffered through a decade-long drought across New Mexico, so did the hornshell.
So the U.S. Fish and Wildlife Service (FWS) made the mussel a candidate in August 2016 to be listed as an endangered species under the Endangered Species Act, with a final determination coming in February.
Supporters hope that by saving the hornshell through a listing, the struggling desert river could in turn be restored.
Davis said a listing is not needed to save the mussel. He said he and other landowners in the area are already engaging in conservation practices, and have been for generations.
Drought and garbage are the main causes of the river’s problems, he said, reducing the water quality and lowering the river’s water level.
He pointed to a nearby underground spring known as Blue Spring, which feeds into the Black River and provides much of its flow. At the point where Blue Spring dumps into the Black River, Davis said erosion and marsh lands cut off much of flow, damaging the hornshell’s habitat.
“Blue Spring is the heart, Black River is the vein,” Davis said. “If you don’t take care of the heart, the vein will die.”
Jeff Humphrey, spokesman for the FWS, said the agency has begun studying Blue Spring, and plans to include it in future conservation efforts.
Listing the hornshell as federally endangered would do little to mitigate the river's problems, Davis said, but would constitute a troubling government overreach.
“The Texas hornshell is an excuse, or means, to get better control of the river,” he said. “We should be doing a good job of managing the river. The problem is when the feds get involved, they want too much control.”
Lisa Ogden, whose family owned ranch land near the river since 1890, said hornshell populations have fluctuated for generations.
“It’s been there for hundreds of years,” Ogden said. “The species is coming back. The species has always come back. It’s thriving.”
Data from the U.S. Fish and Wildlife Service indicates that despite local conservation efforts, mussel populations continue to be imperiled.
Illegal dumping is a major problem for the river’s health, Ogden said, arguing that no law would stop the lawless.
“The most detrimental impact is the public who litters and trespasses,” she said. “All you have to do is look at the trash. We don’t know what the public is putting in there. That has never been part of the conversation, but it’s huge. Especially when you’re trying to keep things clean."
Ogden said she’s tried for years to curtail illegal dumping and trespassing around the Black River. She said she’s seen people partying and drinking in the waters and along the riverbanks, leaving behind discarded beer cans and other trash.
“I don’t care how many "no trespassing" signs, how many times you go to court, they feel they are entitled, whether it is private property or not,” Ogden said of trespassers. “If the land owners are using the land in a good stewardship, conservation way, you’re not going to have an impact.”
An alternative to listing?
Douglas Lynn, executive director at the Center for Excellence (CEHMM), a Carlsbad nonprofit aimed at mitigating environmental concerns in New Mexico, said listing any animal as endangered is a sign that humans have failed to protect it.
“A listing really is a failure, not a success,” he said. “It shows that we failed to do the right thing. We’re trying to keep these animals from being listed so we can manage them on a cooperative level.”
To that end, the CEHMM partnered with FWS to create candidate conservation agreements (CCA) for federal land and candidate conservation agreements with assurances (CCAA) on non-federal or private land.
Humphrey agreed that listing the hornshell under the endangered species act is not ideal, if threats to the species can be mitigated at a local level.
"When a species makes it to endangered species protection, it's never a win," he said. "It means we as humans dropped the ball or failed. The best thing to conserve species is when landowners can do so without added regulations.
"We really try to get in front of the species, to work with the locals to keep it off the list. Our goal is to conserve the species. If we can do that without the endangered species act, that's the preference."
The agreements would entail private landowners adopting specific conservation practices aimed at reducing erosion or river contamination. In exchange, if the hornshell is ultimately listed, enrolled landowners would not be subject to any additional federal regulations resulting from the listing.
Lynn hoped solutions could be reached via the agreements in collaboration with all stakeholders, and structured to meet specific needs of landowners. If the agreements are successful, he said listing the mussel could become unnecessary.
Landowners could also avoid blanket requirements from the federal government, which lacks the resources to enforce the requirements, he said.
“They don’t have the wherewithal and resources to manage these projects,” Lynn said of the federal government. “These programs bring all the parties together at the table.”
The CEHMM is the permit holder for the agreements, which are managed through the FWS.
But Jones questioned if they, as a voluntary measure, are truly enforceable.
“It’s all carrot and no stick,” she said. “We’re concerned that the (FWS) will rely on voluntary agreements to not list. We’re all for (CCAs) if they’re enforced, but we’re concerned the mussel would be another example of them not being enforceable.”
Voluntary conservation agreements were implemented to address population issues for the Sagebrush lizard, found in a small area of southeastern New Mexico and West Texas, read a report from the CEHMM. The FWS proposed listing the lizard in December 2010 and two years later ruled against the listing as a result of conservation agreements with local landowners.
To protect the mussel beyond the agreement, Jones proposed an automatic clause in the agreements that would re-list the hornshell as a candidate if the population fell below a certain amount.
She said the Endangered Species Act has never halted a development project on private, federal or state land.
“It’s pretty rare that the ESA actually halts projects,” Jones said. “It’s a very flexible law. It’s opponents try to paint (the ESA) as a draconian inflexible law that’s going to ruin everything. The research on how it’s actually been used does not bear that out.”
‘I’ll never sign it’
Operations manager at CEHMM Emily Wirth said the work on the agreement program began two years ago.
She said private owners, and federal and state organization can enroll.
Twenty oil and gas companies and 10 Eddy County ranchers signed up as “interested” in signing the CCAAs, but no one had signed as of November, three months ahead of the Feb. 10, 2018 deadline.
And Davis said he never will.
“I’m not comfortable with the federal government, and anyone who is, is crazy,” he said. “I’m willing to work to maintain the health of the river. Anything that affects my water rights or my property rights; I got a problem.”
But if Davis and other landowners continue to refuse to sign the agreements they would be subject to federal regulations, essentially cutting off some access to the river, if the hornshell is ultimately listed.
“Either way you’re taking a risk,” he said. “I’m willing to continue what we’ve been doing, and put it in writing, but I’m not going to roll over. I want the river to be cleaned up. I’d like to be a part of that. What’s wrong with this whole damn mess is too much politics.
“I have the rights to pump out of the river, but I’m not doing it. I won’t do anything to affect the health of the river.”
For Ogden, it’s a matter of trust in the government, which she said has waned in recent years.
Ogden has not yet signed a conservation agreement, and said she is suspicious of any federal guidelines that impact private landowners’ rights to the river and surrounding area.
She worried that even without signing as a private landowner, her access to the river – for watering livestock – could be impeded if the agreements are applied to public land.
“One of the things that might have an impact is whether water access would be denied via state or federal land,” Ogden said. “I think it’s all about control of the river. The mussel is the avenue to control the river flow. If you can’t get a bill through, why not use an endangered species?”
The Interstate Stream Commission, which is responsible for determining water usage and conservation in the state, has indicated it is in support of the agreements.
"The ISC is aware of the proposed listing of the Texas hornshell in the Black River and is focused on protecting local water resources for New Mexico users and state land deliveries to Texas as required by the Pecos River compact," said Melissa Dosher, spokeswoman for the ISC.
"The NMISC has supported the candidate conservation agreements with assurances process but has not taken any formal actions related to the proposed listing at this time."
But the success of the hornshell’s survival is directly tied to the health of the river, Humphrey said.
“The plight of the hornshell is a water quality issue,” he said. “Because it’s less mobile and makes its living filtering water, it really is a representation for the myriad other species that are using the river."
Those other species in the river that could be in danger, but are not candidates for listing include a species of turtle known as the Rio Grande river cooter, the Pecos spring snail and two species of fish: gray redhorse and blue sucker.
Humphrey said the hornshell might not be the last animal at risk of extinction in the waters of the Black River.
“The mussel is kind of the featured species because it’s a candidate for listing,” he said. “But there are other species too. The Texas hornshell is the first to reach our consideration, but that whole suite is recognized.
“People know they’re on the cusp.”
Adrian Hedden can be reached at 575-628-5516, email@example.com or @AdrianHedden on Twitter.