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FWS wants to scrap construction

Wednesday, July 25, 2001 by

Permits in Barton Springs zone

Continued practice could eliminate endangered species

The US Fish & Wildlife Service (FWS) has recommended denying any further construction permits within the Barton Springs Watershed under the Environmental Protection Agency’ s general permit process. Further degradation of water quality in Barton Springs “jeopardizes the continued existence” of the Barton Springs salamander, according to David Frederick, supervisor of the FWS Austin office. The endangered salamander lives only at Barton Springs.

In addition, the FWS says that the EPA should begin reviewing all incomplete construction projects in the Barton Springs Watershed and determine whether projects operating under the general permit meet water quality protection measures recommended by the FWS.

The recommendation is part of a draft biological opinion that the FWS completed as required by court order after settlement of a lawsuit between the federal agencies and the Save Our Springs Alliance (SOSA) and the Save Barton Creek Association. (See In Fact Daily June16, June 20, 2000, Dec. 21, 2000.)

FWS Acting Regional Director Geoffrey Haskett sent the opinion to Gregg Cooke, EPA regional administrator, last week. The letter was released to the public Tuesday. The environmental organizations sued both agencies last year, alleging that the process for allowing development in the Barton Springs zone was a violation of the Endangered Species Act. Specifically, SOSA and SBCA asked the court to order the EPA to consult with the FWS on how to protect the endangered Barton Springs salamander.

“This action should be a wake-up call to developers, the City and the EPA,” said SOSA Executive Director Bill Bunch. “The research of the last two years clearly shows that not just the salamander but the springs are on the brink of extinction. No further pollution from development can be tolerated.”

Harry Savio of the Texas Capital Area Homebuilders Association (TxCABA) said the recommendations from the FWS were no surprise. As a participant in the lawsuit against both agencies, TxCABA will be allowed to submit comments on the opinion to the EPA.

The homebuilders’ organization had filed a separate lawsuit, the allegations of which were 180 degrees from that of the environmental organizations. However, a federal judge combined the suits and they were both settled.

Savio said there was significantly less regulation of development outside the city, as well as within the city limits before enactment of water quality rules, known as the Edwards Rules, in 1995. Those rules, Savio said, “were considered to be non-degradation regulations for water quality.” Savio said his organization would argue that there is no proof that adoption of the Edwards Rules did not provide protection for the salamander from 1995 until now.

“Nowhere in this document (the opinion) is there any indication that anything has occurred, even including the development that occurred prior to implementation of the Edwards Rules has been proven to have a detrimental impact on the salamander,” Savio said. He also faults the FWS for failing to adequately study “the range, population and the trends in the population,” of salamanders, admitting that it is difficult to study a species that exists largely underground or under water, as does the salamander.

The Barton Springs Watershed has about 240,000 acres of contributing and recharge zones. The FWS says that 52,000 acres have been converted to urban land uses. “The current development is resulting in an annual loading of 12,230,733 pounds of (total suspended solids), 20,577 pounds of phosphorus, and 142,692 pounds of oil and grease,” according to the opinion. All of this pollution “has exceeded the State of Texas water quality standards . . . Toxic concentrations of several (metals and organics) have been found in salamander habitat in concentrations that adversely affect invertebrates used by the salamander as food. Any additional pollutant load from new development will exacerbate the situation and result in additional adverse impacts to the salamander,” according to the opinion.

Matthew Lechner, an aquatic biologist with the FWS in Austin, reiterated that the salamander “is in jeopardy.” Continued use of the construction general permit by the EPA “jeopardizes the survival and recovery of the species.”

Beau Armstrong, CEO of Stratus Properties, said his company has been working with the FWS on other projects, such as the Barton Creek development, for “seven or eight years.” However, new plans for Circle C have not been approved yet. He said there was still “a significant amount of work” for his staff and federal biologists to do before the FWS signs off on the project. Armstrong has made overtures to environmental groups to try to get their support for development plans that are similar to but not quite as stringent as those set forth in the SOS ordinance. For Bunch and other environmentalists, one of the most important consequences of federal enforcement of water quality regulations would be that the state’s “grandfather” provisions for development would lose much of their meaning.

Jon Beall, president of the Save Barton Creek Association, said late Tuesday he had not yet received a copy of the opinion. However, he said, “I consider the Fish & Wildlife Service to be making a move in the right direction for the health and welfare of Central Texas . . . and it might have some effect on the Longhorn Pipeline as well.”

Construction general permit explained

New system suggested by FWS

“The construction general permit is not working,” declares David Frederick, supervisor for the Austin office of the US Fish & Wildlife Service. Of course, that was what the Save Our Springs Alliance and the Save Barton Creek Association said when they sued both the FWS and the Environmental Protection Agency last year.

Frederick explained how the permit works. “You’re a developer. You pick up a form and fill it out.” The form asks whether the development (more than 5 acres) will cause harm to any endangered species. If the developer just checks “no,” and mails the form off the Washington, DC, he is free to begin construction. Of course, the developer is supposed to know the answer and answer honestly, but there has been little or no oversight of the permits since EPA started using them in 1998.

In preparing the biological opinion, “the Service randomly visited 46 active construction sites in the watershed. Based on a review of EPA’s database, on-site discussions with developers, and posted permits, the Service determined that for almost half of the sites visited, the developer did not have coverage under the CGP (construction general permit).” So, even though the filing of the form is not a great burden, a lot of developers are apparently still not doing it.

Last month, In Fact Daily reported that FWS officials believe Gary Bradley’ s development at Circle C West is operating in violation of the construction general permit. (See In Fact Daily June 28, 2001)

The salamander is not the only endangered species in the Barton Springs watershed. The FWS concluded that the endangered bird species, the Black-capped Vireo and the Golden-cheeked Warbler, would not be jeopardized by continued use of the CGP. However, service officials concluded that the CGP “is likely to jeopardize the continued existence of the Barton Springs salamander.” The reason for that is not hard to explain. The salamander has a small well-defined critical habitat—Barton Springs—while there are a number of locations that can serve as good habitat for the vireo and the warbler.

“Birds are going to be affected” by destruction of their habitat, Frederick said. However, it is possible to mitigate the damage to the species by setting aside pristine land, or in some cases, by restoring property to its original condition. In preparing the opinion, the FWS has developed a list of what federal biologists believe are “reasonable and prudent alternatives” they believe will “avoid jeopardy to the salamander.” Under the FWS plan, the EPA would notify all applicants in the watershed that their projects have the potential of adversely affecting the salamander.

The plan stipulates that the “EPA must develop a process to assure that CGP projects will not adversely affect the salamander. No project will increase loadings of total suspended solids, phosphorous, and oil and grease above background levels.” Applicants would have to consult with the FWS and provide a letter to the EPA concerning their project’s potential impact on the salamander. The EPA would also be required to review projects currently underway. If the EPA determined that the project would not likely have an adverse effect on the salamander, the FWS would have to concur.

Officials at the EPA office in Dallas refused to comment on the draft opinion. EPA Regional Administrator Cooke will have 21 working days to respond to the FWS draft. The whole process is expected to be concluded by the end of August.

SH 130 costs keep growing,

Along with bond package

Biscoe says county must negotiate with TxDOT

The escalating cost of right-of-way on State Highway 130 turned out to be the hot topic as Travis County Commissioners discussed yesterday what to present for the November bond election. Commissioners have yet to decide whether they will support $150 million, $175 million or even $238 million in bonds when the issue goes before voters. Yesterday, staff members from the Transportation and Natural Resources Department provided a memo on the proposed fiscal impact of the bond election under various scenarios, as well as a list of the prioritized capital improvement projects.

A bond issue of $238 million would mean $250.3 million in bonded indebtedness after attorney’s fees and issuance costs. County staff crunched the numbers on key assumptions such as current bond debt and economic conditions and came up with a cost of an additional $47 per year for the average homeowner, starting in 2002. That scenario is based on the county choosing to issue bonds over five years. By 2008, that additional cost would be $50 per year. Those figures are based upon an average home value of $172,757 in 2002.

But it was the cost of the right-of-way—and State Highway 130, in particular—that was on Commissioner Karen Sonleitner’s mind.As she had last week, Sonleitner expressed her unhappiness with its ballooning price and how the county appears to be left holding the bag on the cost of acquiring what could end up being $180 million worth of land.

Sonleitner scolded Texas highway officials for failing to sit down with the county to decide an equitable split of the cost of right-of-way. “We don’t know what the bottom line is on State Highway 130,” Sonleitner said. “The fact that we have this cost but no controllable numbers is nothing short of ridiculous.”

She said the situation was so hard to believe she was shocked speechless. Right-of-way costs for SH 130 were estimated at only $39 million in 1997. The county already has $24 million on the tableand the current bond proposal would add another $66 million. Asked why the number had changed so much, commissioners were informed that state officials now think they have a better handle on right-of-way costs since the eastern alignment was determined.

Commissioner Margaret Gomez said a number such as 25 percent of the right-of-way totals, or an additional $21 million, would be a more reasonable number to consider. Sonleitner suggested that the cost should be comparable across counties impacted by the toll road, with the counties picking up 10 to 20 percent as is customary on most state highway projects. Travis County has already agreed to pay the entire cost of right-of-way for SH 45-North.

County Judge Sam Biscoe ended the discussion, at least temporarily, by suggesting that the county work toward negotiating its best deal with the Texas Department of Transportation and then offer that total to the voters. In the end, regardless of the amount, it would be the voters who would decide whether the $2 billion toll road should go forward or not, Biscoe told his fellow commissioners.

The public will consider the list of bond projects at a number of meetings over the next week. Commissioners did suggest and pass other amendments on the list of bond recommendations. Sonleitner suggested that the State Highway 130 project be considered in a separate proposition. Gomez went even further, dividing the bond proposals into categories to try to avoid some of the difficulties of the 1993 bond election. The categories included drainage and flood control, roads projects and pedestrian access, county park budget and TxDOT right-of-way projects other than State Highway 130.

Some changes also were made to the project list. Gomez put the $3.5 million Carson Creek drainage project back on the list and, in exchange, pulled the $2.5 million cultural center at Southeast Park. Commissioner Ron Davis lobbied for an additional $3.5 million in funding for East Metro Park, bringing its total to $8.4 million, with the intention of creating facilities comparable to those in Southwest Park.

2001 In Fact News, Inc. All rights reserved.

Welcome to the meeting . . . Planning Commissioner Sterling Lands got a round of applause when he arrived for last night’s meeting. City staffers had been dispatched to search for him throughout One Texas Center as other commissioners waited for a fifth person to make up a quorum. The Planning Commission postponed by one week any action on a zoning change requested by Lumberman’s Investment Corp. The company is asking for the addition of a Central Urban Redevelopment District to property at 910 West Cesar Chavez to allow a maximum building height of 180 feet in the Seaholm district . . . Yuck, brown water . . . Round Rock says it’s just manganese treated with chlorine, but 162 area residents had called the city by Tuesday afternoon to say they were worried about their unsightly water. City officials say they are taking water from a different part of Lake Georgetown now, and the discoloration should end soon . . . Bowhunters invited . . . The Guadalupe-Blanco River Authority is inviting bowhunters to hunt for antlerless deer and wild hogs at the GBRA’s Coleto Creek Park and Reservoir. For more information, visit the website at or call 361-575-6366.

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