Former IBWC counsel alleges abuses affecting safety

Brownsville Herald
August 8, 2010
by Emma Perez-Trevino

While water seeps quietly under the foundation of the two dams in the vast water-management system along the Rio Grande, a whistle-blowing lawyer says he has important information that he hopes will filter to the surface before tragedy occurs.

The dam and levee system provides water for more than 3 million people who live along the Rio Grande.

The two dams – Amistad in Val Verde County and Falcon in Zapata County – are operated by the International Boundary and Water Commission, a U.S.-Mexican agency charged with handling issues concerning bodies of water, sanitation, water quality and flood control along the border.

Robert McCarthy, a self-described whistleblower from El Paso who was employed as general counsel for the U.S. section of the IBWC, says he was fired shortly after he made allegations of fraud, waste, abuse and suspected criminal activity within the agency. A judge has backed the firing but McCarthy has appealed the decision and says he is hoping his termination will be declared improper.

In an interview last week with The Brownsville Herald, McCarthy said abuses within the IBWC have compromised operations, including the safety of the dams and the levee system along the Rio Grande.

In the summary of his appeal, McCarthy states: “The agency operates several international wastewater treatment plants, international dams, and other flood-control facilities, all of which are put at greater risk by this tiny cabal (of some employees at IBWC in 2009) that sees no further than their own parochial bureaucratic interests, jeopardizing the health and safety of millions of border residents.”

Representatives of the IBWC have denied wrongdoing and say the agency continues to properly do its work in managing the dams and levees.



THE ALLEGATIONS

McCarthy’s list of complaints about some of the processes within IBWC in 2009 includes claims that certain employees:

* Solicited bids and issued a contract to construct levees with funds received from the American Recovery and Reinvestment Act of 2009 with architectural designs for which the agency had no contractual rights and which cited state rather than required federal rules and standards. IBWC received $220 million in Recovery Act funds for rehabilitating levees and for flood-control projects.

* Conspired to conceal mismanagement of the $220 million flood-control project funded under the Recovery Act, making false and fraudulent reports to the U.S. Department of State.

* Illegally subsidized a border barrier in Hidalgo County for the U.S. Department of Homeland Security with Recovery Act funds intended solely for flood control.

* Chose to build a “cosmetic” levee with $37 million of emergency flood-control funds in Presidio to give the appearance of safety while covering up geophysical reports that the new levee would not withstand another flood.

* Issued an $88 million contract for an expansion of the South Bay International Wastewater Treatment Plant in San Diego, Calif., months before Congress appropriated the funds, then knowingly covered up the violation;

“While senior agency officials help themselves to illegal pay raises, spy on their colleagues with remote surveillance equipment, and routinely abuse agency staff, levees crumble, millions of dollars are siphoned off for projects unrelated to the agency’s mission, and millions of border residents are put at ever-greater risk of catastrophic injury to their health and safety,” according to McCarthy’s appeal.

He also maintains that the agency has downplayed deficiencies at Amistad Dam near Del Rio and Falcon Dam near Roma, saying an inspection in 2007 conducted by the U. S. Army Corps of Engineers and technical advisers to IBWC found that the entire foundation of Amistad Dam needs evaluation due to the potential impact of seepage from naturally occurring sinkholes.

The reports show that inspectors also noted that Falcon Dam’s entire foundation was in need of further assessment, citing a problem with seepage.

“It’s hard to see what, if anything, has been done since then,” McCarthy told the Herald Thursday.



RUTH RESPONDS

McCarthy’s allegations predate the administration of present IBWC Commissioner Edward Drusina, who was appointed in January by President Barack Obama.

McCarthy is appealing his firing by the former IBWC commissioner, La Feria native C. W. “Bill” Ruth.

McCarthy says Ruth fired him on July 31, 2009, three days after he reported his allegations to an array of federal agencies, including the White House. McCarthy had been with the agency just six months. Previously, he had served as a supervisory attorney with the U.S. Department of the Interior from 1999 to 2008.

Ruth declined to comment on McCarthy’s termination but did address the issue of sinkholes at Amistad Dam and said studies are under way.

“We have been working on that problem and we’ve been with our technical advisers, the Corps of Engineers and the Bureau of Reclamation, and Mexico, and the preliminary report has been made,” he said.

Ruth is referring to a report that a panel of technical advisers issued in November 2009 regarding the condition of Amistad Dam and a plan of action.

“The judgment is that we needed to go forward and do additional studies and that is in progress at Amistad, and we were supposed to have gotten started looking at Falcon Dam this year.

“The judgment was that there was no immediate danger and that the dams had been maintained properly and were in a good state of repair, but that these other problems should be looked at, and they are,” Ruth said.

He said they are monitoring Amistad very closely “to make sure that there isn’t any increase in that flow or that there is no change in the flow being monitored coming from under the foundation.”

“You know, every dam leaks to some extent,” Ruth said. “I mean, that is just a natural occurrence. You will never be able to, in my opinion, completely shut it off. But I mean, whatever needs to be done will be done.”

He said that the longevity of the dams proves that they are of sound structure.

“Most of the dam failures that take place take place when the dam is first put into service,” Ruth said. “If there is a problem developing, you need to address it and that is what we are trying to do now – to determine if there is a problem or not.”

The IBWC has refused to release a copy of the November 2009 report on Amistad Dam to The Brownsville Herald, despite a formal request under the Freedom of Information Act.

IBWC’s FOIA Officer Eric Meza on Thursday declined the request in writing, stating that the report on Amistad Dam is exempted from public disclosure because it falls in the category of “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.

“Such record is privileged as reflecting the deliberative process of government, in addition to containing the guidance of consultants acting in the interest of the agency,” he said, noting that the decision could be appealed.



McCARTHY’S SITUATION

Regarding his firing from the IBWC, McCarthy has filed a petition for review by the Merit Systems Protection Board.

Ruth, the man who fired him, declined to discuss the matter, citing ongoing litigation.

However, in the July 31, 2009, termination letter to McCarthy, obtained by the Herald, Ruth said McCarthy’s conduct had failed to demonstrate his fitness for continued employment. He writes that McCarthy had not supported him or the executive staff in a “constructive and collegial manner” in Ruth’s effort to bring unity within the executive staff.

McCarthy’s petition on his firing already has been heard by merit board Administrative Judge David A. Thayer.

IBWC spokeswoman Sally Spener said in a written statement Friday that Thayer on April 9 denied McCarthy’s request for corrective action.

“Judge Thayer found clear and convincing evidence that the agency would have terminated Mr. McCarthy’s employment regardless of his alleged whistleblower disclosures,” Spener said. “Judge Thayer found that Mr. McCarthy’s employment was terminated after he prepared and distributed numerous factually and legally erroneous memoranda.”

Spener also noted that levee rehabilitation projects in Hidalgo County have been designed to meet federal criteria for the 100-year flood and that all construction contracts issued have been in accordance with federal contracting rules and standards.

In a letter she sent to McCarthy’s lawyers last August, Spener described the agency as one that had undergone a significant and positive transformation. Earlier, in 2005, the U.S. Department of State’s Office of the Inspector General had issued a scathing report that found the agency under then-Commissioner Arturo Duran to be grossly mismanaged and lacking oversight.

McCarthy believes there can be no changes within IBWC until it comes under the oversight of a larger agency, such as the Department of State, U.S. Army Corps of Engineers or the U.S. Bureau of Reclamation.

In October 2006, the Department of State’s Office of Inspector General wrote that the IBWC “is simply too small, too isolated, and too vulnerable to management abuse to continue without the protection and oversight of a major government department.”

“The Department (of State) was asked in early 2005 to provide its own solution to the oversight problem and could not do so,” the OIG report further noted.

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