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Environmentalists win one round of SH 45 SW suit

Thursday, September 8, 2016 by Jo Clifton

Federal Judge Lee Yeakel has rejected arguments from the Texas Department of Transportation and the Central Texas Regional Mobility Authority that would have ended a lawsuit against the two transportation agencies. The suit was filed by various environmental organizations and individuals who contend that the agencies have failed to follow federal law in their plans and designs for the extension of South MoPac and construction of State Highway 45 Southwest.

The new construction will cross environmentally sensitive land, including endangered species territory, potentially jeopardizing the Barton Springs salamander, the golden-cheeked warbler and several cave-dwelling species, called species of concern.

In Tuesday’s ruling, the judge also said TxDOT must comply with Section 7 of the Endangered Species Act by consulting with the federal Fish and Wildlife Service, which could potentially slow down the construction timeline.

The plaintiffs say that TxDOT and CTRMA have attempted to avoid abiding by the National Environmental Policy Act, called NEPA, and the federal Administrative Procedure Act by constructing the southern part of MoPac and SH 45 SW in segments in order to avoid filing a single environmental impact statement that evaluates the impacts of all the segments as a whole, and possible alternatives.

As the judge stated in his ruling, “Each of the three different environmental reviews considers the impact of alternatives to the three projects individually, without considering the impact of or alternatives to the projects collectively.”

The environmental organizations also stated that the project will “take” endangered species and that the transportation agencies must get approval from the Fish and Wildlife Service for that. The agencies attempted to deal with that problem administratively by offering a payment to the Balcones Canyonlands Conservation Plan, but the offer was rejected.

At that time, a TxDOT official stated that the agency did not need to consult with the Fish and Wildlife Service, indicating that construction would proceed without such consultation.

However, the judge wrote in his ruling that “the court must accept as true the facts pleaded that support the conclusion that constructing the SH 45 Southwest Project will result in the incidental take of three listed endangered species.

“Because TxDOT’s development of the SH 45 Southwest Project will take endangered species and TxDOT is acting as a federal agency, TxDOT must comply with section 7 of the Endangered Species Act by consulting with the (Fish and Wildlife) Service. Regardless of whether such consultation, preparation of a biological opinion, or issuance of an incidental take statement constitutes major federal action that triggers NEPA, any implementation by TxDOT of the incidental take statement in order to avoid liability for take may constitute a major federal action and thus require TxDOT to comply with NEPA,” he wrote.

The plaintiffs include the Save Barton Creek Association, the Save Our Springs Alliance, the Friendship Alliance of Northern Hays County Inc., MoPac Corridor Neighbors Alliance, Clean Water Action, Friends of the Wildflower Center and several prominent Austinites, including Shudde Fath, former Mayors Carole Keeton and Frank Cooksey, and singer Jerry Jeff Walker.

Bill Bunch of the SOS Alliance told the Austin Monitor that the plaintiffs are pleased, but he cautioned that Tuesday’s ruling did not mean that they have won the case. He said Yeakel’s 18-page opinion “makes clear the court understands our case” and rejected TxDOT’s arguments.

The next step will be a hearing on a motion by the plaintiffs to compel the defendants to produce certain documents.

The environmental organizations have asked for an injunction to prevent TxDOT and CTRMA from moving forward with SH 45 SW before the questions raised by the lawsuit are settled. As soon as TxDOT sets a date for that construction to begin – possibly as soon as mid-October, Bunch said – attorneys for the environmental organizations want to have the injunction hearing.

CTRMA spokeswoman Dee Anne Heath provided the following statement by email: “We are not concerned that the denial of CTRMA’s motions to dismiss will negatively impact our ability to prevail on the merits of the case. We remain focused on the future and will continue to move the project forward. We owe it to Central Texans to get this critical road built.”

She added, “Over the last decade, lawsuits have been filed against projects in Central Texas but they have not produced any measurable impacts, given that we have proceeded in adherence to all requirements set forth by state and federal laws. In addition, the CTRMA Board approved a resolution at the July 27th CTRMA Board Meeting that requires an additional avian survey to be conducted at the 45 project site location BEFORE any construction begins. Results of the survey will be shared with the Board once the survey is complete.”

Kelli Reyna, TxDOT’s spokeswoman, also sent the Monitor the following statement: “TxDOT will show that we have carefully assessed the environmental impacts of each project and complied with the law. The evidence in the case will show that. The judge’s decisions so far are based solely on the pleadings. The environmental protections that are designed and built into the 45 SW project are the most environmentally protective measures to protect water quality than for any other project in the state and are also fully compliant with the law. The environmental protections for the MoPac intersections are also fully compliant with the law.”

Despite the legal setback, the CTRMA board of directors on Wednesday unanimously approved a pair of contracts worth more than $10 million with two firms selected to work on SH 45 SW. The agency will pay Jacobs Engineering Inc. $7.7 million for engineering services, while Hicks & Co. will receive $2.53 million for ensuring environmental compliance on the work site.

Contributions by Caleb Pritchard. Photo by CMBJ (Own work) [CC BY-SA 2.5], via Wikimedia Commons.

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