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Builder group plans lawsuit over

Tuesday, May 15, 2001 by

FWS water, cave recommendations

Public asked for recommendations, Frederick says

The Texas Capital Area Homebuilders Association (TxCABA) has threatened to file suit against the US Fish & Wildlife Service over recommendations the federal agency has published concerning water quality standards for development. In addition, the developer organization says it will challenge preserve design guidelines for protecting endangered cave-dwelling species.

Harry Savio of TxCABA told In Fact Daily his organization is “very close to litigating” over what developers see as violations of the federal Endangered Species Act (ESA) and the Administrative Procedures Act (APA).

Before a decision is made, Savio said, “I needed to get some clarification . . . on their interpretation of the law. We intend to reach final resolution by May 31.”

In a letter to David Frederick, field supervisor for FWS in Austin, Savio wrote, “In May 2000, without public notice or the opportunity for public comment, the Service abruptly adopted a series of three ‘protocols’ to govern its administration of the ESA with respect to certain endangered cave-dwelling invertebrates in Central Texas . . . The Cave Protocols call for a substantial increase in the level of effort required to survey for cave features and the listed invertebrates, and require that much larger areas of land surrounding cave habitats be set aside as preserves to protect the species. Prior to adopting the Cave Protocols, the Service routinely approved cave preserves that ranged from three to five acres in size. However, the Cave Protocols require a minimum preserve area of 69-99 acres around each cave.”

Alisa Shull, the FWS biologist most involved with decisions on protection of “cave critters,” as she likes to call them, said the service has never accepted three to five-acre preserves. Frederick called Savio’s statements about the size of cave preserves, “quite an embellishment.”

“Every site is totally different. We try to learn from each cave,” he added. “There’s an economic gain for TxCABA members (to attack the service’s regulations.) You have to protect the ecosystem that protects the cave. Not one shoe fits all,” Frederick concluded.

Savio also asserted that the federal agency has imposed “significant new obligations on TxCABA members in the Edwards Aquifer region,” and has changed the rules without warning. The water quality standards recommended by FWS are “based on the theory that the cumulative effects of land development activities within the recharge and contributing zones of the (aquifer) are contributing to water quality degradation that causes take of various listed aquifer-dependent species.” Savio says the FWS “adoption of this theory represents a major change from its previous position that existing federal, state and local water quality protection regulations were adequate to protect the aquifer species . . .”

FWS Assistant Field Supervisor Bill Seawell said, “Our position is that they are recommendations. They are not rules that everybody has to follow. They are kind of a summary of what we believe the literature and the science tells us is needed to protect the species in question.”

Seawell claims that if developers choose to ignore FWS recommendations in any particular area, that doesn’t mean that Fish and Wildlife is going to take any action against them.

Savio also said that “the Service has periodically suggested to certain Central Texas municipalities that they may be subject to an enforcement action under the ESA for approving development permits for projects that are not designed in accordance with the Service’s Water Quality Standards.”

Seawell pointed out that biologists, who assist in gathering the data and writing the recommendations, are not law enforcement officers. “That’s a completely separate division,” he said. He said a new enforcement officer would be coming to Austin in June. The position has been vacant for about two years, he said. “But . . . we don’t want to prosecute—we want to work with them,” he said.

But some developers “just think these are rules and they don’t want to have to abide by them,” Seawell explained. Some developers also fear litigation from other parties, such as the Save Our Springs Alliance, he said. “It’s not just what the service would do, but what a third party would do,” he said.

Shull said the developers of Lakeline Mall were the first in the area to get a permit to “take” a cave invertebrate species. There has been a lot of confusion about the requirements imposed on the developers of that mall. At the time the mall was built, she said, the developers set aside more than 200 acres of land containing caves similar to the one being lost as a result of the mall. Those caves are home to the same invertebrate species as the Lakeline cave. In addition, she said, the service required that two acres around the cave be left undisturbed so FWS could monitor the effect of construction on the cave and its surrounding ecosystem. FWS knows from that monitoring that the number of such animals has declined since the construction, Shull added.

“People do have this common misperception,” about the size of the land set aside, Shull said, as a result of the two-acre on-site monitoring project. She said FWS never considered three to five acres adequate set-aside for “taking” of a cave-dwelling endangered species.

“The key is that the public at large has asked us to let them know what we think the science dictates. We’ve exhaustively researched and we’ve been very comfortable” with the results, Frederick said. The FWS chief said developers had asked for guidance on endangered species protection and FWS responded with its recommendations. Frederick said he feels that the agency is in a “damned if we do and damned if we don’t” situation. Frederick said that he is so confident that the cave recommendations are correct that he is considering making them into rules under federal administrative procedure. He added that his agency has gathered information on ecosystems around caves from “all over the country.”

Board of Adjustment grants

Hyde Park variance requests

City permit process still has 'holes'

Two Hyde Park homeowners won variances from the Board of Adjustment Monday evening. In a repeat appearance before the board, Brett Wooldridge was granted a variance on the minimum side-street setback requirement to keep an addition to the home at 4114 Ave. A. The board had previously denied the request. Consultant Sarah Crocker returned for the reconsideration hearing, with an agreement to limit the area affected by the variance and with more details about the impact of the property's curb cut and driveway.

The most important change from the previous meeting was support from the Hyde Park Neighborhood Association, which had previously gone on record as being opposed to the variance. The group decided to withdraw its opposition because of the new limits on the area affected by the variance, Crocker explained. The proposal to allow the existing addition to the home was approved by a vote of 4-1, with Board Member Betty Edgemond opposed.

Wooldridge was requesting a variance because he had built an addition to his home after receiving permission from the Historic Landmark Commission on two separate occasions. “I did go to the city for permits, and was told that because I lived in a historic district I would need to go before the Landmark Commission,” Wooldridge said. When his project was inspected, city staff found it was in the setback zone. Wooldridge said he then asked how he could be in violation when he had a permit, and found out that “the Landmark Commission does not communicate with the permit office in checking setback requirements. I was under the impression that they did.” Crocker made a point of showing her client's efforts to comply with city regulations, pointing out that “There's still a couple of holes in the system, and I feel like my client fell through one.”

A second Hyde Park case involved property at 312 W. 39th St. Benjamin Siewert won approval for his request to build a second dwelling at the location. Under the current rules, Siewert could have added onto the existing structure to create a duplex. But adding on to that fully restored house, which dates back to 1905, would have gone against the emphasis the Hyde Park Neighborhood Association is placing on single-family residences. Board members agreed with Siewert's arguments that the current orientation of the lots toward Avenue B, with an address on 39th Street, created an awkward use of land space. The new home at the site would face 39th and have a matching address.

©2001 In Fact News, Inc. All rights reserved.

Board of Adjustment denies controversial height request . . . The BOA Monday night voted 4-1 to deny a variance to a developer who wanted to erect an 80-foot tall condominium project at the corner of Dawson and Barton Springs Road. The condos would replace the Treehouse, a defunct bar. The current CS-1 zoning limits height to 60 feet. Neighbors in the Bouldin Creek Neighborhood have opposed increasing the height for a variety of reasons, including the fear that the condos would set a height precedent for other buildings on Barton Springs Road. Henry Gilmore, representing applicant Steffen Waltz, said his client had not yet decided whether to ask the board for reconsideration of the request . . . RECA hosts environmentalist speaker . . . George Cofer, executive director of the Hill Country Conservancy will address the real estate group at its monthly meeting at 11:30 a.m. Thursday at the Omni Hotel downtown. Cofer’s topic will be market-driven land conservation in the Hill Country . . . Senate Bill 1771 arrives in House Calendars Committee . . . Legislation to assist Cypress Realty in its quest to build 2700 homes in Hays County over the recharge zone of the Edwards Aquifer moved to the Calendars Committee Monday. Environmentalists have opposed the bill by Senator Ken Armbrister (D-Victoria). Rep. Rick Green (R-Dripping Springs) carried the companion bill, HB 3644. . . Champion sisters select buyer. . . JPI has optioned 140 acres of the Champion sisters’ property at Loop 360 and RM 2222, according to a report in Denton, managing partner of JPI Austin, told the Internet publication, “We believe it's the best multifamily site in suburban Austin”. . . Winning through perseverance . . . Attorney Richard Suttle returned from coaching a youth soccer game to make his client’s case against a requested variance for the Randall’s store at 2025 Ben White Boulevard. The variance was requested to allow the addition of a gas station at the site. Suttle represented a nearby property owner opposed to the additional use. Representatives of Randall’s didn’t attend the Board of Adjustment hearing, which had been postponed from the board’s April meeting. After consulting with staff on the rules governing the situation, Chairman Herman Thun proceeded with the public hearing. Since the applicant failed to make a presentation and Suttle opposed it, board members decided to deny the request.

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