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Fish & Wildlife says Bradley

Thursday, June 28, 2001 by

Violating construction permit

EPA will not act until consultation is completed

The US Fish & Wildlife Service, which oversees protection of endangered species, believes that Gary Bradley is violating the terms of his federal construction permit in developing Circle C West. Bradley, like many other developers in the region, acquired permission from the US Environmental Protection Agency to build the single-family residential development under what is known as a construction general permit (CGP).

The FWS has attempted to persuade the EPA to deal with Bradley, and other developers who may be in violation of the permit, but the EPA has said now is not the time. The two federal agencies are officially “in consultation” over protection of the endangered Barton Springs salamander as a result of a suit filed by the Save Our Springs Alliance (SOSA). The Alliance agreed to settle the suit with the two agencies if the EPA would consult with the FWS to determine the effect of construction-generated pollution on the endangered Barton Springs salamander. (See In Fact Daily, Dec. 21, 2000, April 24, 2000)

Bradley’s development received approval from the City of Austin last year, after a protracted period of negotiation, which involved a number of legal issues relating to state and local law. (See In Fact Daily March 10, 2000, March 24, 2000) Both federal agencies operate under federal law, including the Endangered Species Act (ESA) and the Clean Water Act. The ESA does not allow grandfathering of old site plans. However, Texas municipalities must reckon with HB 1704, which prohibits cities from changing rules for development after a site plan has been approved.

Under the Clean Water Act, the EPA issues permits for discharge of pollution as well as stormwater runoff. Former SOSA staff attorney Grant Godfrey explained, “The EPA issues discharge permits under the Clean Water Act, which says it’s illegal to discharge any pollution unless you have a permit.” For example, the City of Austin’s wastewater treatment plant has a permit to discharge into the Colorado River. Stormwater runoff, Godfrey said, “is handled in the same way, except (the EPA uses) a lot of general permits as opposed to individual permits. So they don’t have to do a whole permitting process for every single developer.” That means any builder who wanted to construct anything anywhere in the state of Texas could do so under the general permit. “What they did was a one-size-fits-all permit all over the country,” Godfrey said.

So, the EPA has not treated the Barton Springs Edwards Aquifer region any differently than other parts of the state. Developers who would be disturbing five acres or more are required to register for the CGP before initiating construction. They are allowed to begin construction and discharge pollution within two days after mailing the permit application to the EPA. The EPA’s inspectors, who are located in the regional office in Dallas, are expected to police the states of Texas, Oklahoma, Arkansas, Louisiana and New Mexico.

The basis of SOSA’s lawsuit was that the EPA did not seek a biological opinion from the Fish & Wildlife Service. Since that did not happen, the EPA proceeded as if construction pollution would not affect the salamander. The FWS and SOSA agree that siltation entering Barton Springs is a threat to the continued existence of the species. Sediment enters the aquifer as a result of earth-moving activities. Not only can sediment destroy salamander’s habitat, it can kill smaller creatures, such as amphipods, that make up the salamander’s diet.

The FWS is now in the process of writing an official biological opinion for the consultation process. After review and revisions, the consultation is supposed to be concluded by the end of August, according to Bill Seawell, assistant field supervisor in Austin.

David Frederick, supervisor of the FWS Austin office, notified EPA official Jack Ferguson last month that Bradley’s project “as it is being built, it’s not eligible for CGP coverage.” Ferguson, chief of the NPDES (National Pollution Discharge Elimination System) Permits Branch of the Dallas Regional EPA office, is negotiating with the FWS over new requirements for construction in the Barton Springs Zone. Frederick pointed out in his letter that the construction general permit for storm water discharges is only for developers whose discharges “are not likely to adversely affect listed (salamander) species.” Even though the FWS notified Bradley and the EPA in January that the development plans approved in the agreement with the City of Austin were “likely to adversely affect” the salamander, Bradley has proceeded.

Frederick said he has not seen Bradley in many months and that the developer and the city did not give the FWS a look at their plans until the deal was close to completion.

Bill Bunch, executive director of SOSA, told In Fact Daily, “the working relationship (between the FWS and the EPA) has been incredibly strained when it comes to the salamander. Fish & Wildlife scientists have gone on record saying the salamander is one of the most endangered vertebrate species in North America, and they are gravely concerned about its risk of extinction, while the EPA has sort of taken the approach that it’s not a problem.” Bunch said he believes the FWS is doing the best it can, “but they’re dragging EPA kicking and screaming.” He said the EPA clearly already has the authority to call a developer and tell him he is not covered by the CGP.

But the EPA’s Ferguson replied to the FWS notification about the Bradley development and others in a letter dated May 30. “Your letters present advice to the EPA regarding permit implementation, including a recommendation for termination of Construction General Permit coverage for certain existing permittees and/or denial of coverage for certain new Notices of Intent (to do construction), as well as suggestions for permit modification. As you know, under the terms of the settlement agreement in Save Our Springs v. Cooke, our Agency has agreed to expedited . . . consultation ( with the FWS) on this issue . . . EPA Regional Management believes it is inappropriate and premature to proceed with changes to the screening process prior to the completion of the Biological Opinion and any subsequent final permit action.” (Explanation in italics by In Fact Daily.)

Ferguson told In Fact Daily that a developer “may be taking a risk” by doing construction in the Barton Springs Zone by simply filing the Construction General Permit application and not consulting with the FWS, but it’s the developer’s decision. Ferguson indicated in his letter that the EPA would not consider withdrawing any permit already granted unless the FWS takes legal action against a developer—at least until the consultation is completed.

The EPA did not provide specific information on the Circle C West development, and Bradley did not return a call requesting comment. Frederick said, “I’ve got two priorities—protect my people and protect the species. . .No species is going to blink out during my watch. What people don’t realize is, when you start losing your lower critters, who’s next? Especially when you’re talking about water quality and quantity . . . These species are like a candle in a coal mine . . . When the mothers of the world get angry about possible problems with their children, I get a lot of support.”

Lisa Gordon named

Assistant City Manager

Charles Curry steps down from Budget Office

City Manager Jesus Garza has appointed Lisa Gordon to the position of Assistant City Manager. Gordon, who was recruited for the Assistant Manger position won by Roger Chan, has been an acting ACM since Marcia Conner left in mid-May. Joining the city last December, Gordon has been manager of Infrastructure Support Services. Prior to joining the City of Austin, she was an assistant in the County Manager’s Office in Broward County, Florida. As Gordon explained, Broward County provides city services for unincorporated areas and has a $1.8 billion budget. “It’s kind of the reverse of how it is here. In Florida a county does the majority of the services.”

Gordon has a BA from Georgetown University and a Masters of Public Administration from the Maxwell School of Citizenship and Public Affairs at Syracuse University in New York. In addition, she earned a Masters of Accounting from Nova South Eastern University in Fort Lauderdale, Florida. She is very enthusiastic about the quality of life in Austin, declaring, “I came here specifically because Austin is a dynamic place, an award-winning municipality.”

Gordon will oversee Public Works, Transportation, Planning & Sustainability, Neighborhood Planning and Zoning, Solid Waste Services and Infrastructure Support Services.

Garza also announced that Budget Officer Charles Curry has resigned to become Chief Operating Officer for Weidner Consulting. Curry will be available to assist the city throughout the current budget process and will continue to live in Austin. In a memo to the City Council, Garza said, “As you know, Charles has been responsible for the city’s achieving national prominence as a leader in performance measurement and budgeting. It is therefore with mixed feelings that I announce this change.” Curry was not available for comment.

Rudy Garza, who joined the Budget Office last August as assistant director, has been promoted to Budget Officer. He joined the city last August, after working as director of management and budget in Corpus Christi. He said he is excited about working with the challenges that face budget writers this year.

Kerry Overton was also promoted from acting to permanent Director for Infrastructure Support Services. He was previously with Austin Energy.

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

Local water districts being examined . . . Reporters for the Dallas Morning News, who have done an investigative series on development districts in the Dallas area, have turned their attention to Central Texas. Hays County has a number of water control and improvement districts, but none that have spawned other districts like those around Dallas . . . Planning for the night out . . . The Austin Police Department has announced it will participate in neighborhood National Night Out celebrations on August 7. That night, anyone (who isn’t attending a city board or commission meeting) is invited to turn on a porch light from 7 to 9 p.m. and spend the evening outside with neighbors, APD officers and other emergency service personnel. Neighborhood groups who would like an APD representative to attend their celebrations are asked to make the request by Friday, July 6. Applications are available at http://www.ci.austin.tx.us/police or by calling APD at 459-1554 . . . Mueller Neighborhood Coalition meeting. . . The coalition will meet from 6:30 to 8 p.m. this evening at the Asbury United Methodist Church, 1600 E. 38 ½ th Street . . . Visit Lonesome Dove . . . Austin-Bergstrom International Airport is now showing memorabilia from the classic miniseries Lonesome Dove. Local screenwriter Bill Wittliff wrote the screenplay based on the novel by celebrated Texas author Larry McMurtry. Special collections curator Connie Todd said the response to the exhibit started even before it was completely installed, with passersby interrupting to ask questions about the show. The exhibit will be on view through September.

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