3LKS_SemiAnnual_22_0003.pdf

Three Links Farm Conservation Easement

Maintenance and Monitoring Program Bureau of Reclamation Obligation # 4500127019

Semiannual Report: October 1, 2021 – March 31, 2022

Fig. 1: Major land clearing violation on Parcel 3

Report prepared by Birgit De Gregorio

Additional information and review were provided by members of the LSPWA 3 Links Farm Oversight Committee (Diane Laush, Barbara Clark, and Peter Else)

Table of Contents

Three Links Farm Background

Riparian Management Zone (RMZ) General Conditions (incl. ground cover) Biological Surveys Trespass Livestock Fence Repairs and Maintenance Groundwater Temporary River Crossing Permit Other

Monitoring Precipitation Streamflow Groundwater

Residential Agricultural Zone (RAZ) Parcel 3

Change of Ownership Conservation Easement Violations Land Clearing Violation Timeline Damage Categories Resulting from the Use of Heavy Equipment for

Unauthorized Removal of Native Vegetation Loss of 131.2 acres of non-irrigated native dryland plant associations Loss of habitat for avian, mammalian and herpetological species Loss of foraging habitat for threatened and endangered (“T&E”) species Loss of Riparian Management Zone (RMZ) buffer habitat and associated RMZ border impacts Loss of ecosystem microclimates Impacts to water quality in the downslope perennial segment of the San Pedro

River and sediment deposition in the RMZ due to soil erosion Loss of soil in the cleared area during monsoon and winter storms Duration and Total Dollar Loss of Mitigation Value to Reclamation

Parcel 4 Parcel 5

Outreach and Communications

Photo Point Monitoring

The Three Links Farm Background

The 2,156-acre Three Links Farm is located along the San Pedro River north of Benson. The farm was purchased by The Nature Conservancy (TNC) in 2002, at which time the agricultural and irrigation operations were retired. An 814-acre Riparian Management Zone (RMZ) along the river corridor was fenced and conservation easements were put in place to permanently protect native habitats and open space both along the river and within the uplands of the Residential and Agricultural Zone (RAZ).

The Bureau of Reclamation (Reclamation) purchased the Conservation Easement (“Easement”) over 1,420 acres of the property (Fig. 2) on September 12, 2003. On September 28, 2006 oversight of the Easement was undertaken by TNC. Operational and maintenance activities included easement compliance monitoring, facilitation of communication between the landowners and Reclamation, and maintenance of infrastructure with the purpose of ensuring the preservation and protection of natural elements and open space on the farm. On November 27, 2017, TNC and Reclamation ended their association. Reclamation initiated a Memorandum of Agreement with the Lower San Pedro Watershed Alliance (LSPWA) on September 27, 2018 to manage specific aspects of the easement and report on easement compliance.

Riparian Management Zone (RMZ)

General conditions

The specific results for the quarterly streamflow measurements at Station 1 (near the Southern boundary of Parcel 4) and Station 2 (near the river crossing) can be found under the Monitoring chapter. This section describes the general conditions experienced throughout the first half of the fiscal year, between 1 October 2021 and 31 March 2022.

TNC mapped the surface flows of the river and some tributaries June 13-20, 2021 (wet-dry mapping). Results are now available and are shown above in Fig. 3 (Source: <http://azconservation.org/downloads/san_pedro_wet_dry_mapping>).

Fig. 2: The Three Links Farm parcels and conservation easements

Fig 3: Results of 2021 wet/dry mapping on the Middle San Pedro River (TNC).

A new beaver dam (Fig. 4) was observed near Red Rock Creek, which is South of where the last beaver dam had been constructed. It is noted that beaver dams are usually wiped out after major flood events, so it could have been the same beaver that was seen in Fall 2021.

Fig. 4a: New beaver dam at Red Rock Creek

Fig. 4b: Old beaver dam near Streamflow point 1

Due to excellent monsoon rain during the fourth quarter July-September ‘21, vegetation levels had generally been high, especially for 6ft Palmer Amaranth (Amaranthus palmeri) and Johnson grass (Sorghum halepense). Access routes to the wells and streamflow point Station 1 had to be tackled with hand loppers repeatedly as needed.

Biological surveys

Wildlife cameras

LSPWA and Cascabel Conservation Association (CCA) continued to monitor one game camera on the easement, located at South Gap. This fiscal year, it documented Coues deer (an Arizona subspecies of White tailed deer) and javelina. Also seen on the river easement were desert cottontail, rattlesnakes and turkey. In addition, various animal tracks and fresh beaver sign were evidence of other animals being present.

The Bureau of Reclamation continued to monitor two game cameras on the easement.

Nothing unusual has been documented.

The U.S. Department of Agriculture Animal & Plant Health Inspection Service (USDA APHIS) continued to use trail cameras to locate feral swine on the easement. Management activities including monitoring, surveillance, and eradication of feral swine and are conducted by Wildlife Specialist Wade Sanders, who submitted the following report upon request:

“The USDA-APHIS-Wildlife Services (APHIS-WS) program has conducted wildlife damage management at the Three Links farm for disease monitoring, surveillance, and eradication of feral swine. These activities are being performed under a work initiation agreement and work has been ongoing from October 1, 2021, through March 31, 2022.

While conducting management activities APHIS-WS recorded a total of 115.5 staff hours at the Three Links farm.

APHIS-WS currently has 10 trail cameras deployed on the Three Links farm property.

Trail cameras are routinely monitored for feral swine activity. During this time frame two feral swine have been observed. Of these two observed, one male was removed on December 10, 2021 (32.16206, -110.29306). Blood and tissue samples were collected and submitted for genetic and disease (classical swine fever, pseudo rabies, swine brucellosis, plague, and tularemia) testing. Since the removal of the one boar, the second feral swine identified has not been observed on the Three Links farm. This animal is distinct in appearance as it is missing its right front leg. APHIS-WS has observed this animal approximately 7 miles north of the Three Links farm property. No additional feral swine observations have been made since December 2021.”

Fig. 5a: Feral swine #1 (boar) recorded at baited pig trap on 12/02/21

Fig. 5b: Feral swine #2 with right front leg missing, recorded at baited pig trap on 10/08/21

Trespass livestock

Several head of trespass cattle were removed during the monsoon season. Occasional sightings of 2 pairs of black cows (each a cow and a calf) belonging to rancher John Keith had been reported by the owners of Parcel 3 and Parcel 5, but the trespass cattle had eluded capture for two months until they were eventually trapped on Parcel 4 on Dec. 10 and Dec. 18, 2021 by Bob Rogers, resident on 3LF Parcel 2 and manager of TNC’s Parcel 5.

Fence repairs and Maintenance

Water gaps stayed up during this no-flow period. In early December 2021, after retrieving his cattle from Parcel 4, neighboring cattle owner John Keith took it upon himself to replace the existing south water gap at the 3LF boundary. He erected a much tighter 1-wing breakaway fence across the river bed, with the opening at one edge of the channel. It contains more stays, and they are set on the ground. Both gaps have 4 strands of wire (See Fig. 6b).

The previous gap fence (Fig. 6a) had a two-wing breakaway opening in the middle of the channel. It had fewer stays which were suspended above the ground, and the bottom wire was higher and the top wire lower. It had been breached and repaired multiple times without being rebuilt.

The current water gap will act as a fence during the dry season, keeping cattle out of the 3LF. It will need adjustment in July, before flood flows, to accommodate those flows while minimizing damage to the fence, so it can be pulled out of the mud and debris and stretched back across the channel. The bottom strand will need to be removed or raised and the stays lifted. The breakaway wire will need to be minimized to let the breakaway open with higher flows or debris loads. We are considering testing other styles of water gaps as time, labor, and budget permits.

Fig. 6a and b: Suspended old gap fence design (top), compared to new (tighter) ground-touching design installed by John Keith (bottom)

Groundwater

The following graph shows the seasonal changes for Depth to Groundwater at the Three Links wells. A recovery to almost 2020 levels is seen for well 6 (the only well on Parcel 3)

Fig. 7: Fluctuation of “depth to groundwater” (dtg) levels for all monitored Three Links Wells and the Piezometer as seen on end of December 2021 (green) and end of March 2022 (dark blue), in order to separate

a) location-specific deterioration through draw VERSUS

b) climate-related deterioration (which would be the same shift for all wells)

WL 4A WL 6 WL 7 WL 8 WL 9 WL 11 WL 12 WL 13 Piezo S2 0.00

5.00

10.00

15.00

20.00

25.00

30.00

35.00

40.00

45.00

50.00

D e p th to g ro u n d w a te r

[ft

Temporary River crossing permit / Access to Parcel 3 from Cascabel Road

NWP-14, now renewed, resolved the flood-related road maintenance issues. NWP 14 requires that the accumulated sediment be removed by bobcat or other small equipment within the 10ft by 20ft road crossing within the San Pedro River, and the roadway has to be restored to pre-existing grades.

Furthermore, it required that the landowners comply with the following non-discretionary Special Conditions listed below:

1. The permittee shall provide written notification to the Corps of Engineers at least one week prior to the start of work, as to the anticipated date of sediment removal and provide ground photographs of the fill to be removed. Once work is complete, the permittee shall provide ground photographs of the crossing after the sediment has been removed (enough photographs to clearly represent the work that occurred. No vegetation removal is authorized with this permit.)

2. The permittee is not authorized to work outside of the footprint described above in the authorized activity. If additional or more extensive work needs to occur, the permittee shall provide a plan to include a description of the work, the footprint within waters of the US that will be impacted, the type of equipment to be used and the duration of the activity.

3. All fill removed from waters of the US shall be placed outside of the floodplain shown on map.

4. The permittee shall not perform any sediment removal between April 15 and September 15 due to Southwestern Willow Flycatcher and Yellow-billed Cuckoo breeding season. If work is necessary, then the permittee shall coordinate with the Bureau of Reclamation to acquire clearance from US Fish and Wildlife Service to perform the work.

5. The permittee shall allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished within the terms and conditions of the permit.

Since there was a change of ownership for Parcel 3 (see Parcel 3 section under the RAZ chapter), the new owners, David and Mary Zeerip, were reminded during an in-person meeting on March 22, 2022 to have their names put on the NWP just in case any work on the river crossing would become necessary. Although there was slight formation of pools in late March 2022, they dried up quickly and did not affect the ability to cross.

Other

No human trespass incidents were recorded on the South Gap LSPWA/CCA trail camera between October 1, 2021 and March 30, 2022.

Monitoring

Precipitation Rainfall is measured with a clear plastic Tru-Chek gauge, which is manually read and recorded by Kathleen Waldt, who lives at the north end of Reclamation’s easement (UTM location of the gauge is 12S 0566560 3560788 NAD 27).

There was 0.9 inches of rainfall recorded from October 1 through March 31 (Fig. 8).

The last rainfall before January 2022 was on Sep. 30, 2021, and therefore outside this reporting period.

Date Rain

[inches]

01/18/2022 0.03

01/19/2022 0.17

01/23/2022 0.15

02/03/2022 0.01

03/22/2022 0.31

03/29/2022 0.23

Total 0.9

Fig. 8: Rainfall events from October 1, 2021 through March 31, 2022

Streamflow

Streamflow is now measured at two locations on the easement. Station 1 is located near the southern end of Parcel 4 (UTM NAD 83: 12S 0566435 3558835). Station 2 is located near the river crossing (UTM NAD 83: 12S 0566207 3560607).

Fig. 9 (below) provides the streamflow discharge measurements for the first half of the 2021- 2022 fiscal year Station 2 had shown no surface flow year-round, which is of significance because it marked the first time there was no surface flow recorded during usually wet stream conditions (i.e. the winter or spring), ever since monitoring began in 2003. However, in a remarkable change from the dry spring conditions at Station 2 in previous years (notes from previous contractor Alex Binford-Walsh), Station 2 showed promising pools during the spring measurement that were not caused by recent rain (Figure 10a-c).

First half of Fiscal Year 2021-2022

Station 1 [cfs]

Station 2 [cfs]

9/29/21 (fall) 0.6356 0 (dry) 01/10/22 (winter) -0.1412 * 0 (dry) 04/06/22 (spring) 0.7062 0 (pools)

Figure 9: Stream flow monitoring results for the time range between Sept/October 2021 to March/April 2022 (Note: measurement dates are determined by availability of SonTek FlowTracker device, which is shared between TNC Aravaipa and Three Links CE monitoring contractor)

* invalid measurement due to heavy algae growth in streambed, causing reverse flow and eddies

Fig. 10 a-c: View upstream and downstream at Station 2 (river crossing), showing recent formation of long-lived pools (here pictured on 03/22/22 and on 04/06/22)

Groundwater

Depth to groundwater is measured quarterly at eight wells (some of which have active pumps, while some do not), and one piezometer on the easement. Measurements are made with an electronic water level meter with a precision of ~1/10th of an inch. (An overview of all well- and stream flow station locations is shown in Fig. 12.)

Wells were last monitored on April 6, 2022. The table below shows the recorded depths and changes since last quarter and one year ago (also see Fig. 7).

Fig. 12 shows the location of the wells.

Well number Depth to groundwater [ft] measured for quarter ending March 2022

Change since last quarter (quarter ending December 2021)

Change since 1 year ago (quarter ending March 2021)

4A 36.17 UP 1.91 ft down 1.55 ft

6 18.42 UP 1.03 ft down 0.26

7 20.75 UP 0.25 ft down 0.46

8 13.01 UP 0.73 ft UP 0.07 ft

9 31.40 UP 0.55 ft down 0.04 ft

11 27.05 UP 0.45 ft down 0.56 ft

12 31.15 UP 0.30 ft UP 0.5 ft

13 44.80 UP 0.05 ft UP 0.15 ft

S2 Piezometer 19.05 down 0.15 ft UP 0.52 ft

Fig. 11: Well measurements and changes over time

Fig. 12: Map of well and stream flow stations on the easement, as well as approved grazing areas

Residential Agricultural Zone (RAZ)

Parcel 3

This parcel is on the west side of the river, north of Parcel 5 and west of Parcel 4, and includes a total of 446 acres, 112 of which are in the RMZ. The annual water allotment for this parcel is 68 acre-feet. There is one well (#6), located in the RMZ, which has two pumps. One pump (hereafter “6_DOM”) is used to supply domestic water to the home, guest house, and stock watering. The other (hereafter “6_IRR”) is an irrigation pump that supplies water to the barn and irrigated pasture that was expanded in 2014.

The owners have a herd of 21 purchased yearling calves and a few horses and this was the only grazing between Oct 1, 2021 and March 31, 2022.

Water use @ Well 6_DOM

Quarter ending Dec 2021 0.35 ac ft

Quarter ending Mar 2022 0.25 ac ft

Water use @ Well 6_IRR

Quarter ending Dec 2021 4.3 ac ft

Quarter ending Mar 2022 0.1 ac ft

Fig. 13: Parcel 3 total water use Oct-Mar: 5.0 ac ft

1) Change of ownership:

Rocky and Evenette Greenfield sold Parcel 3 including all physical assets on it to David & Mary Zeerip on January 7, 2022.The owners’ son and daughter-in-law, Craig and Susan Zeerip of MI, took up residence in mid-February 20 and immediately began ranching operations

2) Parcel 3 Conservation Easement Violations

a) The daisychain of locks on Parcel 3’s right-of way gates from Cascabel Road (via Parcel 4) as well as from Ocotillo Rd had been tampered with: The A112 Masterlock on the latter, and both the carabiner clip as well as the A112 Masterlock on the former (used by monitoring staff and also by Parcel owners 1, 2, 4, and 5) had been taken away earlier this year and replaced with a combination lock and/or Masterlock that only the Parcel 3 owner could open.

b) Cascabel residents who often return late report that floodlights at the Parcel 3 barn are left on habitually.

c) A new fuel tank was set up outside the 12-acre building envelope by the new owners. (see Fig. 14, taken 04/23/22)

Fig. 14: Newly installed fuel tank just outside the 12-acre building envelope

d) A total of 160.89 acres of native vegetation was removed by the new owners between the end of February and the end of March 2022, of which 131.2-acres lie on the Easement, and 29.69-acres are on ASLD.

A report on this land clearing violation follows, provided by members of the LSPWA 3 Links Farm Oversight Committee (Diane Laush, Barbara Clark, and Peter Else)

Land Clearing Violation Timeline

2/25/22 - Kit Kleinschmidt (TNC) notified Barb Clark (LSPWA) and Birgit De Gregorio (LSPWA Contractor) that mesquite removal was taking place on Parcel 3 of 3 Links Farm. This was the first indication that a violation of the Conservation Easement (Easement) restrictions was taking place by the new owner David Zeerip. Kit electronically sent photos and a video of the mesquite removal. Barb Clark forwarded the files to Peter Else and Diane Laush (LSPWA), and Tab Bommarito (Reclamation). The excavator could be seen working in the video.

3/1/22 - Tab Bommarito (Wildlife Biologist, Reclamation) and Sean Heath (Chief, Environmental Division, Reclamation) conducted a site visit to Parcel 3 to observe the effects of the clearing and talk with the new owners. Reclamation determined that approximately 20 acres of regenerating mesquite and associated scrub vegetation was cleared. The cleared area was located along the fence line near the Ocotillo Road. No one was at the Zeerip home. Tab and Sean waited for several hours, but no one returned. Tab left a note on their porch telling them to immediately stop clearing and asked them to call him as soon as possible. A copy of the Easement was also left on the porch.

3/2/22 - David Zeerip called Tab to apologize for the clearing. Tab told David he is not permitted to remove native vegetation and that he committed an Easement violation that would need to be corrected. David said he was aware of "protections on the river" but claims the former landowner (Mr. Rocky Greenfield) never told him about the easement and didn't know what one was or about restrictions elsewhere on the property. He went on to say he dozed the area because he thought it looked like poor-quality habitat and because he had ideas on improving it for wildlife. He also said he had no intention of dozing further south because the stands look much bigger and healthier. David requested the name of someone who could help restore the area. Tab began preparation of a draft letter to Mr. Zeerip concerning the violation.

But Reclamation put the letter on hold as it was determined that the clearing was done by mistake. Reclamation determined a “softer” approach should be taken with the new owners in order to encourage their compliance with the terms of the Easement.

3/18/22 - Tab conducted another visit to Parcel 3 and met with the entire family. Present were:

David and Mary Zeerip (property owners), Craig Zeerip (son), and his wife (Susan). Tab felt the meeting went very well. Tab reiterated that clearing native vegetation was an Easement violation, and that a plan for restoration was needed. They again said they understood and apologized. Upon his return to the office, Tab began preparation of a revised letter to the family.

3/22/22 - Barb Clark, Birgit De Gregorio, and Diane Laush met with the entire Zeerip family (David, Mary, Craig and Susan). It was a pleasant meeting that lasted 2 hours. We started the meeting with Barb and Birgit giving a "Welcome Package" from the Community. We introduced ourselves and discussed how each of us was connected to the Easement. Diane gave a detailed background of "why and how" Reclamation purchased the Easement. Diane explained that initially Reclamation had a Cooperative Agreement with TNC to monitor the Easement. Barb discussed her work as a TNC employee monitoring the CE. We explained that both Barb and Diane retired from their respective jobs and are now Board Members of the LSPWA. We discussed how the LSPWA became involved with Reclamation and Birgit discussed work she was doing with respect to Easement monitoring. Barb and Diane explicitly discussed the conservation value of the property and what was being protected via the Easement. We described monitoring activities where other people would access their land - bird surveys, feral hog monitoring/trapping, game cameras, and wet/dry mapping. In addition, we noted that the Easement does not permit the use of continuous outside night lights. We mentioned that the road crossing the San Pedro River could be used by all Parcel Owners. A discussion ensued with respect to the Clean Water Act Section 404 permit and maintenance of the river crossing. It was also discussed that during summer monsoon season, Ocotillo Road would have to be their egress-ingress as road maintenance was precluded during the nesting season for the Federally endangered Southwestern Willow Flycatcher.

Diane mentioned that she spent one year working on the Easement language with TNC and that this is a valid legal document that runs with the land. Diane mentioned that when each parcel was first sold, Reclamation appraised the "cost by which the Easement restricted the land use" and that amount was deducted from the price of the land. Jane Amari, Parcel 3’s first owner, got a substantial break on the purchase price of the land because the Easement restricted activities on the land.

At this point, Barb and Diane left. Birgit took Craig and Susan down to the well to discuss the metering system for the domestic and the irrigation pumps.

3/24/22 - Kit observed a renewal of clearing activities by the landowner and emailed the information and photos to Barb Clark. Barb forwarded the email and photo links to Peter, Diane, David, Birgit and Tab.

3/26/22 - Tab indicated there were multiple internal conversations occurring within Reclamation as a result of the continued clearing by the landowner.

3/29/22 - Tab conducted another site visit to assess impacts from the continued clearing on Parcel 3. Tab walked the perimeter with a GPS unit and estimated the area cleared to be 160.89 acres of which 149.23 acres is on Reclamation’s Easement. The remainder of the clearing is on State Trust Land. (Note: Tab on April 6, 2022 clarified the final acreage loss as160.89 of which

131.2 acres was on Reclamation’s Easement and 29.69 acres was on ASLD.) Reclamation’s solicitor communicated with Mr. Zeerips' lawyer at Brown and Brown and told him that all clearing must stop. The Brown and Brown lawyer said he had never read the Easement or been aware of its existence. No one at Brown and Brown had talked to anyone from Reclamation.

Mr. Zeerip’s lawyer said he did discuss with the Zeerip family the 12-acre place of use for irrigation water. The lawyer stated he “assumed” Mr. Zeerip could clear the 12-acres and it appeared that Mr. Zeerip took that as permission to clear what he wanted. As a result of the continued unauthorized clearing, Reclamation is revising their draft letter to Mr. Zeerip and their lawyer. As of this date, Tab had not seen the current draft of the Notice of Violation letter being prepared by Reclamation in concert with the Arizona Office of the Solicitor.

3/30/22 - Peter emailed Tab, with copies to Diane, Barbara, and David, complaining about untimely and ineffective enforcement action by the Phoenix Area Office of Reclamation. Peter stated, “I do not foresee a long-term restoration project on 150 acres (acreage stated prior to Tab’s revision) as being sufficient to cure the violation. The new owners cleared the land after being told not to, and dramatically reduced its conservation value for years to come. They should pay for the damages.”

3/30/22 - Bob Rogers (TNC) informed Birgit that the clearing on Parcel 3 had stopped and that the equipment had been loaded onto a transport trailer.

3/31/22 - Bob Rogers reported that the transport trailer was gone by the morning.

Damage Categories Resulting from the Use of Heavy Equipment for Unauthorized Removal of Native Vegetation.

1. Loss of 131.2 acres of threatened native dryland plant associations vital to the conservation value of the Reclamation’s Easement.

2. Loss of habitat for avian, mammalian, and herpetological species.

3. Loss of foraging habitat for federally threatened Yellow-billed Cuckoo and federally endangered Southwestern Willow Flycatcher.

4. Loss of buffer habitat to the Riparian Management Zone (“RMZ”) and associated RMZ border impacts.

5. Impacts to ecosystem microclimates.

6. Impacts to perennial stream water quality and sediment deposition in the RMZ due to soil erosion.

7. Loss of soil in the cleared area.

8. Devaluation of the Conservation Easement.

1. Loss of 131.2 acres of non-irrigated native dryland plant associations.

Most modern-day farming along the lower San Pedro River has traditionally been conducted by small family farmers. Many of these family farms have now been abandoned and lie fallow or have been sold for other uses. In the early 2000s, The Nature Conservancy (TNC) began to acquire farms along the river in order to retire water rights (Stromberg and Tellman 2009, p.

221).

The many abandoned agricultural fields that occupy the San Pedro River terraces are now undergoing old-field succession. A variety of annual plants (e.g., carelessweed) and perennial herbaceous plants (e.g., bindweed) are common on fields that pre-cultivation were predominantly inhabited by mesoriparian mesquite and sacaton vegetation types. Mesquite is actively revegetating the fields, and one study showed two to eight years elapsing between field abandonment and mesquite establishment (Oleksyszyn 2001, Stromberg and Tellman 2009, p.

21). Three Links Farm is a perfect example of this regeneration process.

When the Dobson family purchased 3 Links Farm, they cleared mesquite bosque and mesoriparian mesquite habitat adjacent to the San Pedro River in order to cultivate alfalfa for their ranching operation. The Dobson’s stopped farming operations around 2002 prior to the sale of the property to TNC. The old-field succession process started at that time and was enhanced in 2007 by the original Parcel 3 owners (Jane and Roberto Amari) working in concert with TNC and Reclamation to re-establish native grasses, forbs, and shrubs. Since that time significant regeneration of mesquite and other native vegetation as described below has taken place. The evidence of over 15 years of regeneration can be seen in the photos taken in 2020 as part of the biennial photo point documentation of 3 Links Farm. See Appendix A which compares the vegetative conditions between 2003 and 2020.

As seen in Appendix A photos, vegetative cover increased substantially from the bare ground present at the time Reclamation acquired the Easement in 2003 to March 2020. Although the primary vegetation removed was mesquite, other vegetative species were also present. The area supported other native trees, forbs, grasses and shrubs, including white thorn acacia, graythorn, snakeweed, rabbit brush, globe mallow, zinnias, asters, sand dropseed, threeawns, needle and sixweek grammas. Note: Scientific names for all plant and animal species are located in Appendix B. The mesquite clearing initiated by the Landowner has reset the ground and canopy cover back to zero. The recovering mesquite habitat on Parcel 3 that was removed took over 15 years to establish. In a matter of weeks, this habitat was destroyed without regard to its ecological value, its value to the Easement or the required coordination with the Easement holder.

Reclamation Biologist Tab Bommarito documented the initial clearing of ~20 acres near Ocotillo Road on March 1, 2022. Tab notified the Landowner by a note left their patio on March 1st and via telephone conversation on March 2nd. Tab followed up with additional documentation on March 29th, when he learned that clearing activities had continued despite having instructed the Landowner to stop all clearing. The total acreage cleared now totaled 131.2 acres. The western portion of the cleared area has sandier soil and tree density tends to be lighter here than in the eastern portion, closer to the RMZ. See Figure 13 below. The tree loss rate sampled on 12.7 acres was noted at 39 trees per acre. Accounting for a prior aerial photo showing some areas with less trees and some areas with more, the number of trees lost on the 131.2-acre cleared area is conservatively estimated as being between 2000 to 3000 trees. Figure 14 shows photo documentation of the cleared area as of March 28, 2022.

Fig.15: Depiction of total area cleared in yellow hatched design.

Fig. 16: Photo documentation of the unauthorized clearing taken on March 28, 2022.

2. Loss of habitat for avian, mammalian and herpetological species.

Note: the following is not meant to be an exhaustive list of species utilizing the Easement.

Birds

Historically, mesquite bosques provided a unique and valuable ecosystem for a variety of animal and plant species. However, in recent times many of these woodlands have been either eliminated or heavily reduced and fragmented by anthropogenic influences. Associated with loss and reduction of these bosques is a decrease in populations of many plant and animal species dependent upon this riparian type (Stromberg 1993; Johnson et al. Volume 1 2020, p. 48).

Within the past several decades, mesquite species have generally migrated out of the mesoriparian and xeroriparian areas and successfully invaded many upland habitats. The increase in mesquite in upland areas has been largely due to the natural adaptability of the species for surviving in a wide range of hydrologic conditions. Clearly, upland mesquites are the same species as riparian mesquites but have been able to invade the upland areas as grasslands have declined under grazing pressures or drought (Johnson et al. Volume 1 2020, p. 52).

The Easement lies within the transition zone of 3 major vegetation communities: Sonoran Desertscrub, Chihuahuan Desertscrub and Semidesert Grassland resulting in high avian diversity (Stromberg and Tellman 2009, p. 153). The majority of wildlife species in the upland habitats on the Easement are typical of the Sonoran Desertscrub community. Mesquite habitat provides foraging and breeding habitat for a variety of birds. In addition, due to its proximity immediately adjacent to the riparian corridor, the mesquite habitat also provided foraging habitat for birds more typically associated with riparian habitat. Avian species that are associated with mesquite habitat include: Lucy’s Warbler, Vermillion Flycatcher, Bell’s Vireo, Ash-throated flycatcher and Phainopepla. Birds typically associated with riparian habitat that could utilize the adjacent mesquite include: Western Yellow-billed Cuckoo, Southwestern Willow Flycatcher, Yellow-breasted Chat, Blue Grosbeak, Northern Cardinal, Hooded Oriole, and Northern Oriole.

The mesquite also provides habitat for a variety of migrating and/or wintering bird species.

These include: Northern Harrier, Black-headed Grosbeak, Ruby-crowned Kinglet, Yellow-rumped Warbler, Dark-eyed Junco, Gray Flycatcher, Green-tailed Towhee, White-crowned, Vesper, Brewer’s, Lark, and Chipping Sparrows.

The San Pedro River is home to several specialized raptors: Gray Hawk, Zone-tailed Hawk, Common Black Hawk, and the Mississippi Kite. These species as well as other raptors breed along the riparian corridor and can forage in the uplands. Other raptors include: American Kestrel, Cooper’s Hawk, Swainson’s Hawk, Great Horned Owl, Barn Owl, Western Screech Owl, and Elf Owl.

Other avian species found on the Easement that could potentially utilize the mesquite habitat for breeding and/or foraging include: Common Ground Dove, Mourning Dove, Abert’s Towhee, Canyon Towhee, Northern Mockingbird, Northern Flicker, White-winged Dove, House Finch, Verdin, Gambel’s Quail, Western Kingbird, Cactus Wren, Lesser Goldfinch, Greater Roadrunner, Gila Woodpecker, Ladder-backed Woodpecker, Black-throated Sparrow, and Common Raven.

Mammals

The San Pedro watershed is an internationally recognized “hotspot” for mammals, hosting one of the richest assemblages of mammal species in the United States (Stromberg and Tellman 2009,

pp. 107-126). Although the Easement represents only a small area within the San Pedro watershed, the location of the Easement along a perennial stream can lead to increased small mammal diversity in the area. The diversity of small mammals has changed over the past 20 years as the habitat evolved from agriculture to weedy pasture to mesquite. No formal mammal surveys have been conducted on the property. However, a list of potential species can be generated from the general location and habitat type. Two books reviewed to prepare the list were: The Ecology and Conservation of the San Pedro River (Stromberg and Tellman 2009) and The Mammals of Arizona (Hoffmeister 1986). In addition, informal lists have been kept by Easement monitors and noted on game cameras monitored by Reclamation, LSPWA, and TNC.

A variety of small mammals can be found in the mesquite habitat and include: Desert Cottontail, Black-tailed Jackrabbit, Antelope Jackrabbit, Harris Antelope Ground Squirrel, Rock Squirrel, Botta’s Pocket Gopher, Desert Pocket Mouse, Ords's Kangaroo Rat, White-throated Woodrat, Cactus Deermouse, Northern Grasshopper Mouse, Spotted Skunk and Hognose Skunk. Large mammals utilizing the area include: Badger, Coatimundi, Gray Fox, Collared Peccary, Coyote, Mule Deer, and White-tailed Deer, Bobcat, Mountain Lion, and Black Bear.

Herpetofauna

As with the mammals, no formal surveys have been conducted for lizards or snakes. Reference materials included (Stromberg and Tellman 2009, pp. 175-191) and A Field Guide to Amphibians and Reptiles of Arizona (Brennan and Holycross 2006) and personal observations by residents of the area. Mesquite bosque, mesquite scrub, semi-desert grassland, and desert scrub habitats tend to have the highest herpetofaunal species diversity (Stromberg and Tellman 2009, p. 182). Herpetofaunal diversity, composition and abundance are influenced by microhabitat features such as soil, rock, and debris substrate, understory and overstory vegetation density and type; and the presence of ephemeral or perennial water (Stromberg and Tellman 2009, p. 183). Prior to its complete removal, the mesquite habitat satisfied many of the aforementioned microhabitat features. The herpetofauna that could potentially occur in the mesquite habitat include: Western Box Turtle, Western, Banded Gecko, Gila Monster, Long-nosed Leopard Lizard, Common Lesser Earless Lizard, Zebra-tailed Lizard, Southwestern Fence Lizard, Regal Horned Lizard, Desert Grassland Whiptail, Desert Spiny Lizard, Gopher Snake, Coachwhip, Common Kingsnake, Western Diamondback, Mohave, Arizona Black, and Black-tailed Rattlesnakes.

3. Loss of foraging habitat for threatened and endangered (“T&E”) species.

Two federally listed species are found on the Easement: The threatened Western Yellow-billed cuckoo (cuckoo) and the endangered Southwestern Willow Flycatcher (flycatcher). Both of these species are found in the riparian corridor within Parcel 3. Surveys conducted by Reclamation in 2019 recorded 15 cuckoo detections opposite or immediately north and south of the old center pivot area where the vegetation was illegally removed. Based on the “grouping” of these detections, Reclamation biologists determined that there were 2 cuckoo territories opposite the old center pivot area, 1 cuckoo territory immediately north and 1 cuckoo territory immediately south of the old center pivot area. No surveys were conducted in 2020 due to Covid restrictions. In 2021 Covid restrictions were relaxed in time to conduct surveys however fewer cuckoos were detected. Reclamation was unable to determine territories due to the reduced number of detections. However, 5 of the 9 detections recorded were located opposite the old center pivot area. The cuckoo is known to forage outside of the riparian corridor in upland habitat. Consequently, removal of the mesquite reduces the potentially available foraging habitat for the cuckoo. The LSPWA believes that the mesquite clearing “may affect” the cuckoo. We believe Reclamation should determine if there are any “effects” to the cuckoo from this action. If so, appropriate consultation with the Fish and Wildlife Service should occur.

Unlike the cuckoo, Reclamation biologists have documented nesting behavior of flycatchers adjacent to the old center pivot area. No actual nests were located due to the lack of time to conduct nest searches. However, Reclamation documented flycatcher pairs in the riparian habitat opposite (or immediately adjacent) to the old center pivot area in 2016, 2017, 2018 and 2019. When pairs are documented on at least 2 of the 3 surveys they are assumed to be breeding.

No surveys were conducted in 2020 and 2021 due to Covid restrictions. Reclamation documented 6 territories in each of the 4 years that surveys were conducted. Flycatchers have been known to nest in mesquite adjacent to the riparian corridor. This was observed at Cook’s Lake, a Reclamation mitigation property on the lower San Pedro River (pers. comm. Diane Laush). Although no nesting was documented within the mesquite prior to the removal of vegetation, there is a loss of potential foraging habitat. Flycatchers were observed foraging outside of the riparian corridor at several locations within the Easement during Reclamation surveys (pers. comm. Diane Laush). In addition, loss of the buffer habitat increases the potential for Brown-headed Cowbird parasitism on the flycatcher.

4. Loss of Riparian Management Zone (RMZ) buffer habitat and associated RMZ border impacts.

In addition to the foraging impacts to T&E birds that nest in the RMZ, foraging opportunities and wildlife movement cover is critical to many animal species in the affected area of Reclamation’s Easement. Habitat border impacts are caused when humans remove natural vegetative cover or introduce wildlife disturbances adjacent to high value wildlife habitat. On a large scale, this is called habitat fragmentation, but border impacts on a smaller scale also reduce habitat quality.

In this situation, the abrupt transition from high value RMZ habitat to land that has been denuded of vegetation results in a loss of protective cover for movement and foraging activities of many of the wildlife species referenced in the previous sections. The loss of protective cover inhibits the ability of wildlife to avoid prey species. It has also been shown through numerous studies that lack of sufficient buffer habitat (also known as the “edge effect” results in increased predation and parasitism of nesting passerine birds. An estimate of impact to the RMZ border can be made by determining the proportion of RMZ border affected by the land clearing activity.

See section 8 below.

5. Loss of ecosystem microclimates.

Under the extreme heat and drought conditions currently being exacerbated by climate change, microclimates produced by native vegetation canopy species are becoming increasingly important to supporting wildlife populations and producing a diverse ground cover that protects the landscape from erosion during major rain events. These microclimates improve habitat conditions on the Easement, increasing its overall value for biotic species and abiotic factors such as temperature, humidity and soil.

Tilth is defined as the physical condition of soil as related to its fitness as a seedbed and its promotion of seedling emergence and root penetration. A vegetative canopy protects the soil surface from the “capping” effects of rainfall falling on open clay-type soils; this crust of hardened soils prevents seedling emergence. The litter provided by canopy species and the lower temperatures from shading and transpiration effects provide conditions that are beneficial to improving the development of symbiotic fungi and other soil-based microflora that improve soil tilth and increase the water and nutrient holding capacity of the soil under the extreme desert climate conditions present on the Easement.

These positive soil effects provide improved conditions for the development of understory vegetation species that depend on canopy nurse plants to get their start on non-irrigated land.

That cycle of developing the conditions favorable to dryland vegetation diversity was reversed with the recent land clearing. The new landowners told LSPWA members that developing grass cover was a good way to produce carbon credits. However, lacking the water resources to develop and sustain a grassland cover under unfavorable climatic and marginal soil conditions, this objective should have been reviewed with the Easement holder before being pursued on a large scale, as required by the terms of the Easement.

6. Impacts to water quality in the downslope perennial segment of the San Pedro River and sediment deposition in the RMZ due to soil erosion.

The land clearing took place upslope from an increasingly unique perennial stream segment.

The land clearing not only represents the loss of over 15 years of habitat regeneration, but it also increases the susceptibility of the land to erosion as a direct result of the method of land clearing and from the impacts of overgrazing that can take place when grazing is not carefully managed.

The use of heavy equipment to clear the land reduced the stability of the soil surface in all areas including deeper horizons of the soil profile where trees were removed, significantly increasing the susceptibility to soil erosion during rain events (Figure 18). Native tree species with their typical low branch development had helped to mitigate overgrazing impacts (that occurred between 2014 and 2021) by protecting many patches of undisturbed soil and understory vegetation. Restoration of soil stability will be hindered by the current language in the “Severance and Transfer” of irrigation water rights of the San Pedro River to instream flow use which precludes use of water on this specific area of Parcel 3.

The soil type in the majority of the affected area is the Hantz complex. It has very limited capability for cultivation purposes and limited capability for additional water infiltration once the surface horizon is thoroughly wetted. Considering the soil type and the high degree of deep soil profile disturbance due to the use of heavy equipment, the soil erosion potential is very high on slopes greater than 2%.

As a result, this land clearing and resulting soil erosion will have both water quality impacts on the downslope perennial stream and cause sediment deposition in the RMZ for an estimated period of 15 years, based upon the last effort of dryland restoration at this site. These impacts can be reduced, but not eliminated, by requiring the best available restoration practices. The net impact cannot be estimated at this time, and would require new monitoring responsibilities associated with this large-scale violation. Monitoring would involve photo documentation, measurement of visible gullies, and the use of elevation stakes located in the cleared area and in the downslope RMZ to document soil movement due to erosion.

Fig. 17. Soil disturbance by heavy equipment.

7. Loss of soil in the cleared area during monsoon and winter storms.

The loss of soil is considered a permanent loss, not a loss that would diminish in scale following the restoration period. It can only be quantified by using methods similar to those described in the previous paragraph. As mentioned above, light textured Hantz soils of the cleared area on slopes greater than 2% are subject to significant erosion impacts during major rain events.

No reputable restoration experts, such as those working at the USDA Southwest Watershed Research Center, would recommend uprooting thousands of trees with heavy equipment under the circumstances present at Reclamation’s Easement. The USDA Center has for decades worked on minimizing management-caused soil impacts, and is currently conducting trials related to lower impact mesquite removal methods at the Walnut Gulch Experimental Watershed.

8. Duration and Total Dollar Loss of Mitigation Value to Reclamation.

As of the end of this reporting period (March 31, 2022), Reclamation had not issued a written notice of violation. As of the date that Reclamation finally did issue a written notice of violation (April 12, 2022), Reclamation indicated that they were not going to seek compensation for damages and other additional costs caused by the violation, but instead were only requiring the Landowners to pay for habitat restoration costs.

Section 10 in the Deed of Conservation Easement outlines measures that should be taken by Reclamation as the Easement holder, including timely written notice of violation (10A), injunctive relief when needed to prevent irreparable harm (10B), compensation for damages to conservation values (10C), emergency enforcement when immediate action is needed (10D), and recovery of costs of enforcement (10F). The Easement was purchased with public funds and compensates for ecological damage resulting from the construction of fish barriers associated with the Central Arizona Project. As the reporting party, LSPWA is documenting the damages caused by this violation, as well as the additional costs that will be incurred to public funds and to volunteer hours provided by LSPWA.

The following factors can be used to provide an estimate of the dollar loss of mitigation value on the Easement:

Percentage of land cleared on Reclamation's Easement: 131.2 acres cleared on 1420 acres total = 9.2% of the total easement was cleared.

Percentage of RMZ boundary impacted: About 2625 feet of RMZ boundary was impacted by the land clearing, out of a total RMZ boundary (on both sides of the River) of approximately 35,000 feet, for a total RMZ border impact of about 7.5% Total loss of habitat value to the Easement should take into account the difference in mitigation credit value between Easement land within the RMZ and the land where the land clearing violation took place, which was immediately adjacent and upslope from the RMZ.

Another factor to consider is the duration of the habitat value loss. Reclamation’s Easement was established at the end of 2003. A dryland restoration project was initiated on the same site in Parcel 3 in 2007. This is considered an investment in habitat value. It has taken about 15 years to develop the vegetative cover since that restoration project was initiated. The duration of the next restoration can be justified as also being approximately 15 years, assuming the next process begins soon and includes similar canopy features that reduce habitat border effects along the RMZ.

Assuming that the next restoration process takes as long as the last one at this site (about 15 years) the projected year of completing the restoration process would be 2037. This would mean that 15 years out of the Easement’s 30 years of since the 2007 restoration project was initiated (50%) would have been affected by this violation. Thus, successful restoration would discount total loss by about 50%. However, unsuccessful restoration could lead to a much greater loss of habitat than was present prior to the land clearing and progressive deterioration to the downslope RMZ habitat and perennial stream.

Permanent losses, such as soil loss in the cleared area and sediment deposition in the RMZ, cannot be discounted by a restoration duration factor.

The wide range of dollar loss due to damages described in the previous sections is likely to be somewhere between 3% and 10% of the total mitigation value of Reclamation’s 1420-acre Easement, depending mostly on the effectiveness of the restoration process and net impacts to the prime perennial stream habitat in the downslope RMZ. The current total dollar value of Reclamation’s Easement, based on the original purchase price and adjusted for inflation, is approximately $1,181,000.

Damage and legal costs referenced in Section 10 of Reclamation’s Deed of Conservation Easement are separate and additional to restoration costs, but are vital to sufficiently curing the violation, deterring future violations, reimbursing public investment in the Easement, and providing legitimate mitigation credits for the construction of the Central Arizona Project.

Because administrators in the Phoenix office of Reclamation were unwilling to take the swift and effective enforcement actions prescribed in Section 10 of the Deed, the current and future volunteer labor hours provided by LSPWA for reporting and monitoring the violation have increased significantly, as have the social risks posed to our local volunteers and hired contractors.

Whereas on-site LSPWA personnel are required under our Memorandum of Agreement to report violations to Reclamation within 48 hours, remote administrators in Reclamation’s Phoenix office delayed written enforcement and are declining to seek compensation for…