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SOSA files suit against EPA,

Wednesday, December 19, 2001 by

Fish, on construction permits

Agencies failed to finish consulting, as promised

The Save Our Springs Alliance (SOSA) has filed suit, once again, over the federal government’s continued use of the construction general permit in the Barton Springs zone of the Edwards Aquifer. The environmentalists sued both the Environmental Protection Agency (EPA) and the Fish and Wildlife Service (FWS), alleging that the agencies have breached their agreement—which they apparently have—to conclude consultation over the Barton Springs salamander by the August deadline set in the agreement. The agreement was part of a settlement between SOSA and the agencies to settle a previous SOSA lawsuit over the same issue. (See In Fact Daily, Aug. 23, 2001 .)

In early September, Bill Bunch, executive director of SOSA, said he intended to head to court quickly to enforce the agreement. However, knowing that representatives of the agencies were scheduled to meet in Washington, D.C. on September 5, SOSA held off on its suit. Then came the tragic events of September 11, and the nation turned away from all concerns other than terrorism. In the meantime, the EPA has continued to issue the permits. Environmentalists around the country are beginning to complain that the Bush administration has used the distractions of a war on terrorism to hide its actions—or lack thereof—on various environmental issues.

“SOSA’s lawsuit demands that the federal agencies live up to their word and comply with federal law,” said Amy Johnson, attorney for the Alliance.

Johnson said the suit, filed in federal court in Austin on Monday, seeks an injunction compelling the agencies to complete their consultation. SOSA is also asking the court to order the EPA to cease all registrations under the construction general permit (CGP), declare the EPA’s past use of the CGP as a violation of law and declare all current permits invalid.

David Frederick, supervisor for the FWS Austin office has previously 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 the EPA started using them in 1998. (See In Fact Daily, July 25, 2001. ) Frederick told In Fact Daily about a year and a half ago that his agency was having long, serious discussions with the EPA over the permit. (See In Fact Daily June 7, 2000 .)

Frederick was not available for comment on Tuesday. An FWS Austin employee referred In Fact Daily to the FWS Albuquerque office for a comment. Tom Bauer, public information officer for the Albuquerque FWS, said the agency has not received a copy of the lawsuit and therefore could not comment. David Bary, a spokesman for the EPA in Dallas, also declined to comment since to his knowledge the EPA has not received a copy of the lawsuit either.

In July, the Fish & Wildlife Service recommended that the EPA deny any further general construction permits within the Barton Springs watershed, saying that further degradation of water quality in Barton Springs “jeopardizes the continued existence” of the Barton Springs salamander. The endangered salamander lives only at Barton Springs. In addition, the FWS said 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 Texas Capitol Area Builders’ Association (TxCABA) has steadfastly opposed changes in the CGP permit process for the area, saying that sufficient safeguards are in place to protect the salamander.

Bunch said Tuesday he believes that politics is the reason for the delay. “Politics interfered with the listing of the salamander and now politics is interfering with the protection of the salamander. We had to sue two times for the listing. Now, we have to sue even though the Fish and Wildlife Service’s own scientists tell them” the permit is not working.

County OKs ban on wild animals,

Postpones waste siting regulations

Commissioners postpone suddenly contentious park puchase

Travis County Commissioners, concerned about the cost and manpower inherent in regulation, chose to ban wild animals from the county yesterday.

County Judge Sam Biscoe had extended the deadline on approving the ordinance an extra couple of weeks to try to reach some compromise with both animal sanctuaries and pet owners. But as the final hearing was closed yesterday morning, Commissioner Karen Sonleitner told pet owners she considered 98 percent of the relevant issues with the ordinance to have been addressed.

“I think I’ve gone as far as we are comfortable with, and I’m just not going to be one to support grandfathering and exemptions that really seem to relate to folks wanting to do business ventures related to animals,” Sonleitner told the speakers, adding, “My comfort level is satisfied.”

Comments last week by speakers Jim Smith and Lorre Brown(see In Fact Daily, Dec. 12, 2001) were weakened somewhat when it was learned they both live in Williamson County, although Brown insisted she spoke for cat owners in Travis County who were too afraid to address the court. Those owners, she said, feared repercussions from the county. Williamson County has already chosen to ban wild animals.

Last week, commissioners did make compromises on the ordinance, excluding IRS-sanctioned wildlife sanctuaries such as the Crow’s Nest Wildlife Rescue and Rehabilitation facility and the non-profit Austin Zoo. Sonleitner told the audience she was confident the county had listened carefully to all sides of the issue, and tried to craft an ordinance that was not a blanket approach to all animals.

Biscoe told Smith the county ordinance would remain silent on hybrid cats unless those cats caused a problem. If a complaint were filed on a cat claiming it was a wild animal, that complaint likely would be investigated, Biscoe said. Smith, who sits on the board of the local cat association, was concerned that a number of show cats that are hybrids of domestic and wild cats—such as Savannahs and Bengal cats—might be included under the ordinance.

Speakers had suggested that owners meeting USDA requirements for the ownership of wild animals be excluded under the ordinance, but commissioners were reluctant to regulate the animals. The approved ordinance will require the owners of what the state classifies as “dangerous wild animals” to remove those animals from the county by June of next year.

Commissioner Ron Davis agreed that it was likely that the state would have to revisit some of the concerns expressed by animal owners during the process of approving the ordinance. Brown said 2003 was too soon for those owners now faced with placing their animals in other counties or destroying their animals due to a lack of space at animal shelters and rescue operations.

Park put on hold

Commissioners also postponed action on purchase of land for the Southwest Metropolitan Park after hearing complaints from four citizens. Two aldermen from the Village of Bee Cave told commissioners they had a deal for about half of the 124 acres the county is eyeing for its park. Alderman Mike Murphy said Bee Cave had planned a “rustic open-space park” and had passed a bond election based on the proposal for that property. He said Bee Cave is a dark skies community that would not appreciate nighttime activities or the lighting associated with such events. Murphy said he and other town officials had been “semi-besieged by residents” worried about the Travis County park proposal.

Bill Bunch, executive director of the Save Our Springs Alliance, also objected to the development of parkland along Little Barton Creek and adjacent to City of Austin watershed preserve land. Bunch said that according to agreements between landowner Daniel Porter and the city the property is limited to very low-density rural development.

Commissioners approved a motion postponing the purchase until after the county has discussed the matter with representatives of the City of Austin and the Village of Bee Cave. They said Porter, who wanted to close the deal before the end of the year, would have to wait a little longer.

No waste siting ordinance yet

County Commissioners also extended the deadline on the Solid Waste Working Group over the objections of Northeast Austin neighborhoods that strongly oppose local landfills.

The working group, formed a month ago, will have another 60 days to draft an ordinance on siting landfills. As Chief Environmental Officer John Kuhl told commissioners yesterday, a 30-day deadline to reach consensus between landfill owners and local neighborhoods was probably too ambitious.

Kuhl recommended two separate work groups be formed to study two distinct issues. One group would address the issues of appropriate siting criteria for new facilities. The other would address criteria for permits on existing facilities and the resolution of issues between current landfill operators and local residents.

Kuhl admitted that the group had yet to deal with many of the hardest questions on the subject, such as: What was the proper distance of a site from a residence or school? Are the flood plain maps exact? Should existing facilities be grandfathered? Should existing operators be allowed to expand vertically or horizontally? And how should regulations on existing landfills be enforced?

Attorneys for the local landfill operators expressed hope that further discussion would address some of those issues. BFI attorney Paul Gosselink said his client wanted the ordinance to be done right. The Travis County ordinance, he later said, may become a template for other counties in the state.

Local residents vehemently opposed extending the deadline on the current ordinance, saying that local landfill operators BFI and Waste Management could easily file for expansion of their current operations. President John Hutchison of Walnut Place Homeowners Association said the division of the working group into two subgroups was nothing more than an old military technique of “divide and conquer.”

Wealthy lawyers representing landfill operators had unlimited time to work the case, while most residents in Harris Branch and Chimney Hills were giving up vacation days to plead their side, Hutchison said. No one can step outside the back door in Walnut Place without smelling the sickening stench of garbage. It is no wonder local residents were suspicious of local landfill operators, Hutchison told commissioners.

Hutchison and other residents asked that the draft ordinance be approved immediately, which Commissioner Ron Davis, who represents the protesting neighborhoods, promptly proposed. That motion died for a lack of a second. Later, County Judge Sam Biscoe explained that the court had already decided the ordinance was flawed and should be addressed instead through a public input process.

Biscoe then suggested a multi-part motion that was approved by the court. He proposed extending the deadline for 60 days and asking current committee members to continue their service. He also asked Executive Director Joe Gieselman of Transportation and Natural Resources to negotiate a salary for current working group chair Jim Gudenrath, who is a local mediator. Biscoe also asked that the meetings be moved to a later hour to accommodate neighborhood leaders who were missing work to attend meetings.

In addition, commissioners will draft a list of questions for the group by the end of the week to help speed up discussion of the relevant issues in the case. Committee member Bill Hilgers suggested that asking how current landfill operators will address existing community concerns top that list. Those questions will be part of the consent agenda during the first week of the January.

Biscoe left the group to figure out how to bisect itself into more efficient units. His measure won approval from the commissioners with the exception of Davis, who abstained on the motion. Davis did extract a promise from local landfill operators that they would file no paperwork for expansion of their facilities while the ordinance was being drafted.

2001 In Fact News, Inc. All rights reserved.

Bentzin to announce race today . . . All the local buzz this week is about Dell executive Ben Bentzin, who is expected to announce today that he will run against longtime Austin State Sen. Gonzalo Barrientos. Bentzin, chair of the Board of ARTS Center Stage, should have an easy Republican primary, with no other candidates appearing on the horizon. Bentzin has worked for Dell for the past nine years and heads up the division responsible for e-commerce and support for Dells federal, education and business customers . . . This is the final issue of the year 2001 . . . We will be taking a holiday and will return on January 7. We hope each of you have a wonderful time, regardless of your faith, or lack thereof . . . Final fundraiser of the year . . . Claudette and Hugh Lowe will host a fundraiser for Mayor Pro Tem Jackie Goodman at their home at 400 Academy on Thursday from 5:30 to 8:30pm . . . First fundraiser of the New Year . . . Council Member Daryl Slusher, who, like Goodman and Council Member Beverly Griffith, is trying to raise money as well as more than 18,000 signatures, is holding a fundraiser on Sunday, Jan. 6 from 4 to 6pm. The event will be at Threadgill’s World Headquarters at Riverside and Barton Springs Road. Slusher and Goodman are also gathering petitions at Threadgill’s every Friday from 4:30 to 6pm . . . Rodriguez to announce . . . Eddie Rodriguez, former chief of staff for State Rep. Glenn Maxey, plans to announce for his boss’ job. Rodriguez recently resigned from his position as executive director of the Travis County Democratic Party. He will oppose Lulu Flores, who has already announced for the seat, in what could become a crowded race. Maxey is retiring . . . Deputy honored . . . Travis County's West Side Command Station will be named for Maurice Bowie Moore, the first deputy who died in the line of duty. Moore was gunned down in 1876.

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