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To Save a Bay

Once hobbled by mercury pollution, Lavaca Bay is now brimming with life.

By Larry D. Hodge

An oyster is pretty ugly, but Raenell Silcox seems to think the one she's holding is a potential beauty pageant contestant. Beauty is in the eye of the beholder, and if not for the efforts of Silcox and a host of others, this oyster would not exist.

Silcox – a Texas Parks and Wildlife Department attorney – is on a boat in Lavaca Bay with other people involved in a project that has brought the bay back to health – following primarily mercury pollution from the Aluminum Company of America (Alcoa) plant on the bay's east shore. They're here to check on the project's progress, and the oyster is one of the first plucked from a constructed oyster reef built as part of that project.

To Silcox and the others, it's more than just a homely mollusk – it's tangible evidence that more than a decade of work by a team of natural resource scientists, construction workers, lawyers and Alcoa employees has paid off. Lavaca Bay is back.

If you've ever owned a car, wrapped a sandwich, washed a load of laundry or sanded a board, you've probably used a product that can be traced to the Alcoa plant at Point Comfort. The plant began operating in 1948, and three to four ships still arrive monthly carrying bauxite (aluminum ore) from West Africa. The ore is processed into alumina, a compound that can then be refined into the bright, lightweight metal that touches each of our lives every day.

But there's a dark side to the historical aluminum production at this particular plant: Prior to changes made to the process in 1979, one of the by-products was mercury, a heavy, highly toxic liquid metal with the ability to work its way into water and soil and eventually into the animals that live therein. Once it enters the food chain, mercury builds up in a process known as biomagnification. Mercury accumulates in small amounts in little fish. But bigger fish higher up in the food chain must eat lots of little fish to survive – and they take in much more of the poison as a result.

And people eat those fish – or did until April 1988, when rising levels of mercury in fish prompted the Texas Department of Health (now known as the Texas Department of State Health Services) to ban the taking of finfish and crabs from a large part of Lavaca Bay. Recreational fishing crashed, and people stopped ordering seafood at local restaurants. The town of Port Lavaca, across the bay from Alcoa, found itself on the edge of a Superfund site.

That might have been the start of a long, contentious legal battle between Alcoa and the Environmental Protection Agency and other state and federal resource protection agencies, but a funny thing happened on the way to the courtroom: Everyone involved agreed that the best approach was to work together to address the problem rather than punish Alcoa through fines and penalties.

"Alcoa made the decision in the early 1990s that affected how we view remediation projects around the country," says Ronald Weddell, project manager for the company. "Alcoa has a lot of pre-environmental law legacies that we have to deal with, and we made the decision to set aside a reserve to fund those liabilities and fix this problem as quickly as we could. We tried to share a common trust and get to an answer instead of getting into a dogfight with the government agencies. Even if you don't agree, if you respect other people and their positions and let science drive the project, you can get the job done."

Sitting in on a meeting between Alcoa and representatives of TPWD, the U.S. Fish and Wildlife Service, the Texas General Land Office, the Texas Commission on Environmental Quality and the National Oceanic and Atmospheric Administration (NOAA), it's obvious that the people in the room not only respect each other, they are friendly. "Weddell came up with this plan called 'throwing the snake on the table,' says Ron Gouguet, the NOAA representative. "Basically we acknowledged that we didn't trust each other, but that we wanted to work together to solve the problem. We had some intensive communication and began to trust each other, even though we were representing interests in an adversarial issue."

Despite disagreements and often heated discussions, the representatives of state and federal resource protection agencies and Alcoa were able to work through the issues to successfully implement a jointly developed restoration plan. "This was a team approach, and it happened that way because of the people involved," says Don Pitts, TPWD's Trustee Program director.

"Texas has always tried to work cooperatively to resolve these issues. We pursue habitat restoration, because that is our mission – not to put money from fines into a bank account. Our charge is to replace injured resources and services with similar resources to compensate the public for their loss."

Losses occurred not only from the pollution itself but also from clean-up actions – Alcoa moved nearly a million cubic yards of soil and sediments containing 2,300 pounds of mercury to a sealed disposal site. The first step was to discover what had been lost. "We formed a team and started looking at resource impacts and injuries," Pitts says. "We looked at upland areas, effects on wildlife and birds. The biggest loss was the fishing closure, because people could not keep fish."

"The fish were still there, but people could not take them, so our compensation was to provide access in areas where there was not a pollution problem," says Gouguet.

One of the most popular results of the project was a new lighted fishing pier on the Port Lavaca bayfront. "The pier was not in the original plan," Weddell points out. "But we listened to the community, and the pier was something they said they needed and wanted."

"Alcoa was flexible enough to come in at additional expense and add the fishing pier," Pitts says. "Plus they provided money to make sure the projects are maintained for 15 years."

Building the fishing piers and other land-based improvements was simple compared to constructing two other elements of the project, a 70-acre intertidal marsh and an 11-acre oyster reef, says William Quast, president of Benchmark Ecological Services, one of the firms hired to design and oversee construction.

"We collected tidal range data over a period of several years and studied natural marshes in the area," Quast says. "What we found was that the normal range between high tide and low tide was less than a foot. Keeping everything at the right elevation is absolutely necessary, because we wanted to be sure our planting surface fell right in the middle between high and low tides, so we could take advantage of the best growing conditions. We set permanent elevation benchmarks and used them to survey all the channel and pond bottoms and planting surfaces in the marsh. All the bulldozers used to construct the marsh had devices on their blades to receive a laser beam that was set at the benchmark elevation and broadcast throughout the construction site, so the operators could see exactly where their blades were in relation to the depth they were seeking. After they finished, surveyors checked to be sure the planting surface fell within a tolerance of two-tenths of a foot."

A similar amount of planning went into the design of the 11-acre oyster reef located at the mouth of Keller Bay, southeast of the Alcoa plant. "We searched all over Lavaca Bay for a suitable site," says Quast. "We found there had been big oyster reefs at the mouth of Keller Bay in the past that had been mined by companies making concrete. A big clay shelf sticks out from the mouth of the bay at a depth of four to six feet – a perfect, firm bottom. There is also a significant flow of water out of Keller Bay during tidal exchange, and oysters need moving water to bring food to them. The site had everything we needed."

Building the reef required bringing limestone from Missouri by barge, then placing the rock into the water in strips 50-feet-wide, separated by 50 feet. "The barges used to carry the stone are 40 feet wide, so they could anchor between two strips and offload from both sides," Quast explains.

Almost as soon as the stone was in place, nature took over. "We told the contractor to be finished by May 31, because oysters spawn in spring, and we wanted the stone to be covered with oyster larvae rather than other larvae that might be more abundant at other times of the year, like barnacles in summer," Quast says.

"From an ecological standpoint, the timing was perfect," Pitts says. "Within a matter of weeks, oysters were starting to colonize the reef."

"I was truly astounded by the phenomenal degree of success that we've achieved out there in such a short time," Silcox says. "Probably the thing that made me happiest was the attitude of the Alcoa employees and the consultants. They seemed more excited about creating the best marsh and oyster reef that they possibly could than with just meeting the artificial criteria in a consent decree. This project would have taken a much longer time or perhaps not have happened at all if there had not been a great deal of respect and admiration between the trustee representatives and the Alcoa representatives. It was a very civil process, even among the lawyers."

Key to the entire project was Alcoa's attitude. "We wanted to compensate the people who live here rather than feed a bank account in Austin," Weddell says.

The diver who brought up the oysters for us to look at said that when he splashed into the water, he could hear clicking sounds all across the reef as oysters snapped their shells closed.

They were just defending themselves from an intruder, but I like to think they were applauding.

From Polluter to Partner

Alcoa has spent about $110 million on projects to offset injuries to fish and wildlife and to compensate for losses of recreational fishing in Lavaca Bay. In addition to clean-up activities, Alcoa has:

  • constructed a 70-acre marsh within and adjacent to the Aransas National Wildlife Refuge
  • purchased 729 acres of coastal habitat that will be transferred to the Aransas National Wildlife Refuge
  • created an 11-acre oyster reef that will grow to a future 22 acres and is available for harvest
  • built three new fishing piers and two docks and made other improvements to public access facilities around the bay
  • provided funds to maintain the facilities for 15 years

"One of the biggest benefits is the transfer of property to the Aransas National Wildlife Refuge," says Alcoa's Ron Weddell. Kenneth Rice of the USFWS agrees. "This will benefit the entire refuge," he says. "At times the refuge holds as much as 20 percent of the waterfowl on the entire Texas coast. The additional 729 acres is in an area that is valuable habitat for whooping cranes, and that makes it a real gem for all the people of the United States."


What is a Natural Resource Trustee?

Natural Resource Trustees are state and federal agencies authorized by law to act on behalf of the public as trustees of natural resources – to assess injuries to resources and to obtain compensation from responsible parties. Texas Parks and Wildlife Department, along with other state and federal agencies, has signed a Memorandum of Agreement that describes how the multi-agency team will carry out those duties.

"The process developed in Texas by the state and federal trustees has been presented as a national example of how the laws should be implemented by both industry and agencies," says TPWD's Don Pitts. "Prior to this process, it was unusual for injuries from pollution events to be restored, and the public lost their value and use until they recovered through natural processes. The process in Texas results in the restoration of injured natural resources without prolonged court battles. Cases are settled with the responsible party either undertaking restoration projects or providing funding to allow the trustees to implement restoration projects.

"This program has been very beneficial to the state," adds Pitts. "This is one of the few pollution laws with a required goal to actually restore the natural resources that are injured."

Since 1992, Texas has obtained settlements restoring 4,252 acres of habitat valued at more than $31 million.

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