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Highlights of SOSA argument Against FWS salamander opinion

Monday, August 5, 2002 by

Environmentalists point to signs decision was based on politics, not science

Attorneys for the Save Our Springs Alliance have found what they hope will be the smoking gun that forces two federal agencies to change the rules for construction over the Barton Springs zone of the Edwards Aquifer. Four days before the issuance of the biological opinion concluding that local regulations were adequate to protect the Barton Springs salamander, then US Fish & Wildlife Service (FWS) local Director David Frederick implored his new boss in Albuquerque not to sign that opinion. Frederick was transferred from the Austin office of FWS in what was widely viewed as political payback. He wrote this about the radically changed biological opinion:

“The current proposal actually takes a step backward and will lessen the level of protection,” for the endangered Barton Springs salamander. “The Service cannot maintain that current rules and regulations are adequate when all recent studies and our decisions since 1998 have said otherwise.” Frederick’s memo to FWS Regional Director Dale Hall, dated May 2 of this year, followed on the heels of an email from Bill Seawell, another member of the FWS Austin staff. “The bottom line now is—we’re not getting any new information, jut a different spin on the stuff we already had.”

The SOS Alliance argues that the final biological opinion is “arbitrary and capricious and not in compliance with the Endangered Species Act.” In addition, the brief says, the opinion “conflicts with the opinions of its own experts and constitutes a reversal of its long-held previous positions” concerning the health of the salamander. They are asking the court for an injunction against the Environmental Protection Agency (EPA) to prevent further use of the construction general permit in the Barton Springs zone.

SOSA attorneys Amy Johnson and Bill Bunch started their brief in support of a judgment against the FWS and EPA with the two passages quoted above. They found those statements in documents obtained from the federal agencies. The Alliance and the Save Barton Creek Association (SBCA) first sued the federal agencies over use of the construction general permit more than two years ago. Last spring, in a settlement agreement, the EPA agreed to consult with the FWS over the biological opinion. A draft opinion, authored by FWS biologists, stated that the salamander was in jeopardy of extinction and argued that use of the construction general permit jeopardized the continued existence of the salamander. FWS scientists recommended that the EPA modify the construction permitting process in the Barton Springs zone. They suggested that the EPA adopt water quality protection measures such as impervious cover limits, buffer zones, treatment of stormwater runoff to eliminate pollutants, and sedimentation and erosion controls. The draft opinion also recommended immediate review of 250 existing projects operating under the construction general permit.

The final opinion was due in September, but not issued until this May—after SOSA had filed another suit and Federal Judge Sam Sparks had told the agencies that they must conclude their deliberations within 40 days. (See In Fact Daily, March 29, 2002, Dec.19, 2001.)

Environmentalist Mary Arnold told In Fact Daily, “I strongly agree that the current construction general permit is woefully inadequate in terms of protecting the endangered species. That’s because of a couple of things —the regional construction general permit contains language that says that all the person has to do is fill out a form that says, ‘What I’m doing is not going to harm endangered species.’ So there are no special provisions they have to comply with and because of all the grandfathering in this area (under HB 1704, state grandfathering provisions). The construction general permit is one thing that is not affected by grandfathering. That’s why it’s so important that there be adequate protection during construction.”

In his May 2 memo, Frederick wrote, “The primary threat to the water quality at Barton Springs is from pollution in stormwater runoff from urban development, after construction is completed. Therefore the quality of stormwater treatment from the post-construction development is critical to minimizing harm to the salamander. Non-degradation (engineering calculations to demonstrate 100% removal of total suspended solids, total phosphorous, and oil and grease) is the only mechanism available to protect aquifer water quality and the salamander, based on best available science. Two methods to accomplish this are the SOS Ordinance (applicable within the City of Austin and its extraterritorial jurisdiction), and the Service’s (September 1, 2000) recommendation for protection of water quality, which were provided to EPA about 1.5 years ago.” A number of developments in Austin’s ETJ have been protected from application of the SOS Ordinance by grandfathering provisions.

Harry Savio, executive vice president of the Texas Capitol Area Builders Association (TxCABA), wrote a letter in April to the science advisor to Secretary of the Interior Gale Norton. The FWS is a part of the US Department of the Interior. According to the brief, the letter asked, “‘Why is the SOS Ordinance not sufficient?’ FWS responded, ‘The SOS ordinance . . . covers about 29 percent of the watershed. Many projects in this area are exempt from SOS due to grandfathering . . . The remaining 71 percent of the aquifer does not have true nondegradation water quality protections. The level of protection provided is not adequate to minimize the impacts of stormwater runoff on the water quality in salamander habitat.’” TxCABA is also named as a defendant in the lawsuit.

Pleasant Valley affordable housing

Neighbors complain about rental units, school crowding

The Austin Housing Finance Corporation (AHFC) will provide financing for the construction of affordable housing in East Austin. Last week, the City Council, acting as the board of directors for the AHFC, approved using $17 million in revenue bonds to help Southwest Housing Development (SHD) build the 280-unit Pleasant Valley Villas at Oltorf and Pleasant Valley.

“This is a significant development for Smart Housing in Austin,” said Community Development Officer Paul Hilgers. The units will be reserved for families that earn 60 percent of the state’s Median Family Income. “This is a quality, proven developer that we have experience working with in Austin and he’s worked with our Smart Housing program,” Hilgers said. “It meets the qualification for the highest priority that’s defined in our annual action plan, which is the production of new rental units serving families at 50 percent or below the median family income.”

Craig Alter, vice-president with SHD, told Council members the company had met with members of the nearby Burleson Heights Neighborhood and attempted to address their concerns about the project. “Consistent with classically accepted planning principles, we are creating a transition from a single-family neighborhood to a duplex neighborhood to a multi-family neighborhood,” Alter said. “We are co-existing as one would expect in a neighborhood.” The project will include a total of 280 rental units, 80 of which will be duplexes. After receiving neighborhood feedback, the design of the project was changed to close Benjamin Street, eliminate certain access points, reduce overall density and preserve a tree buffer along the property line.

Those changes didn’t mollify all of the nearby residents. Several signed up to oppose the project, including Sam Ellison. “The only thing we’re trying to do is get valid answers to our questions,” he said. “We have reduced these down to issues of safety and education.” The new population at the development would result in more than 160 new children in the area. About 80 of them would likely be elementary school aged and within the boundaries for Linder Elementary, which is already overcrowded. However, AISD representatives told Council members in July they would have time to adjust those boundaries if necessary through the district’s normal process.

Ellison also complained that neighbors felt they had not been fairly treated by the Zoning and Platting Commission and had not had an adequate opportunity to voice their concerns. “I did not push this issue, because I feel like it comes here and the buck stops here. I ask you to take this short delay and answer the few questions we have reduced this down to. I don’t feel we’re being out of line.”

Paul Robbins, an activist who generally speaks to the City Council on electric utility issues, told the Council in a prior hearing that he planned to move into a house that borders the property. “I’m not opposed to affordable housing per se. I have concerns about how this is currently proposed, particularly as it would affect the economy—that is, that money that the city will contribute. First, I think the neighborhood would be best served by owner-occupied housing. It has a greater likelihood of being maintained, and it would give occupants some realized wealth rather than just paying rent.”

East Austin activist Gus Peña spoke in support of the project, citing the need for more affordable housing throughout the city. The current dip in the real estate market, Peña said, would not last long. “There are amenities out there, a lot of apartment complexes are giving reduced rent, et cetera,” he said. “Well, when ACC students come back into town and UT students come back into town, you will not have the inventory.” Peña also said others supported more affordable housing for East Austin, but would not make their feelings known to the Council because of fears of retaliation. “Somebody has been passing rumors in that neighborhood (that) some yards have been trashed. I’m hoping it doesn’t occur again.”

Ellison countered that those concerned about the project had not been involved in any wrongdoing. “What’s being mentioned about what’s going on in the neighborhood is very inaccurate,” he said. “You have a lot of compassionate people here, people who have been in this neighborhood for over 50 years. We have many friends who may have the need of low-income housing assistance. We do support this.”

Officials with SHD also had to address some political fallout from a proposed affordable-housing project in Fort Worth, which faces vocal opposition from some neighbors. In the final Council meeting of July, residents of the Burleson Heights area delivered a letter to the Council from the Hulen Bend Homeowners Association in Fort Worth, detailing several grievances against the company.

Brian Potashnik, president of SHD, said his company had complied with all city rules and met all city standards, but still faced opposition from residents who did not want housing for low-income residents to be built in the area. “This is a man who said divergent incomes should not be mixing, that this should be a development we should bring to the other side of town, and if I did not follow his instructions and comply that he would have the rope, the tar and the feathers for me,” Potashnik said. “These are comments that are not only bigoted and dangerous, but certainly it’s not indicative of anything that I have seen from the Austin Housing Finance Corporation. I’m proud to be in Austin with people who support affordable housing.”

Council Member Raul Alvarez spoke up to defend the project, both at the July 18th meeting and at the meeting on August 1st. “Most of the time when we have neighborhood concern about affordable housing we are at the zoning stage, where the zoning is what would allow or disallow a particular development,” Alvarez said at the July meeting. “In this case, the applicant already has zoning, so the only reason that it’s before the City Council right now is because of this issue of whether there should be tax credit financing to make the units affordable. If that wasn’t on the table, then a developer could move forward and develop these very same projects. To me it seems like what’s on the table is whether or not we feel strongly enough that we should support it through this tax credit financing to make sure that we have some affordable housing. For that reason I am going to support it.”

Other Council members agreed with Alvarez, and voted unanimously to allow the AHFC to issue two types of bonds to help finance the project. That will allow the company to keep the rents on the units lower than the normal market rate. We are not asking the City of Austin for money,” company Alter said. “We’re asking the City of Austin for the right to obtain debt by essentially obtaining a mortgage from the purchasers of the bond.”

Friday

Annexation hearing . . . The City Council has scheduled a special meeting at 6:30pm tonight at the Hope Presbyterian Church, 11512 Olson Drive. Council members expect to hear from the public on city plans to annex the Anderson Mill Road municipal annexation plan area. The Board of Adjustment will meet at 5:30pm tonight at One Texas Center and the Design Commission will be meeting at the same time at 11th and San Jacinto. The latter should have an interesting evening discussing Republic Square, the Hilton Convention Center Hotel and the Convention Center Parking Garage . . . Meade resigns . . . Attorney Nikelle Meade of Brown McCarroll was recently appointed to the city’s Commission for Women. However, she is also a registered city lobbyist and city ordinance prohibits lobbyists from serving on boards. After the matter was brought to her attention, she decided to resign . . . Goode boy does fine . . . Robert Goode, who has been public works director for the engineering firm Bury & Partners, has been chosen by the City of Fort Worth to lead that city’s Department of Transportation and Public Works, according to the Fort Worth Star-Telegram . . . Sanchez Austin office opening today. . . The Tony Sanchez Campaign has scheduled the opening of its Austin Field Office for noon today at 1306 East 7th Street. Sanchez will be there for the opening party and to release the names of his Austin Steering Committee . . . SOS Alliance to celebrate anniversary . . . The Alliance will have a party to celebrate “10 years of hard work and citizen participation” beginning at 7pm Thursday at the Hard Rock Café on 6th St. Featured performers include W.C. Clark, The Shelley King Band and Jane Bond, among others. The following Sunday there will be a party at the Barton Springs, with free swimming. For more information and to register for the 2.5-mile fun run and walk, visit www.sosalliance.org.

© 2002 In Fact News, Inc. All rights reserved.

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