The Austin Chronicle

Night of the Living BCCP, Part 37

Balcones Canyonlands Conservation Plan: Half a Loaf?

By Robert Bryce, May 19, 1995, News

It was a day many people thought would never come. And yet last week, after nearly seven years of wrangling, the City of Austin and Travis County finally agreed on a framework for the Balcones Canyonlands Conservation Plan (BCCP). They agreed to prepare and submit a 10(A) permit application to the U.S. Fish and Wildlife Service (FWS) under the Endangered Species Act that will allow development in endangered species habitat. In exchange, developers will pay a mitigation fee of up to $5,500 per acre, which will be used to buy preserve lands for Austin's endangered species.

"The sky must be falling or hell must be freezing over," said one BCCP veteran, who was gratified to see the plan move forward. But how effective will the plan be?

From a biological standpoint, earlier versions of the plan, which would have acquired most of the 30,428 acres of preserve land very quickly, were much better than the current plan, which could take 20 years before acquisitions are completed. However, county residents voted in November of 1993 against a $49 million bond issue to purchase the preserve lands - thus forcing local officials to come up with a new financing method for the BCCP. The new process will require landowners wanting to develop land with endangered species habitat to buy certificates from the FWS. The certificate holders will then be allowed to develop their property, and the money collected will be used to acquire and manage preserve lands.

Surprisingly, Travis County Judge Bill Aleshire, a long-time critic of earlier versions of the BCCP, has now be-come one of its staunchest supporters. He says the new version of the habitat plan "may not do as much good as the old versions, and the financing may not be as secure, but as long as we aren't obligated to spend any more revenue, then I don't think there's a reason for anyone to oppose it."

Opposition, however, continues to come from property rights advocates like (Field?) Marshall Kuykendall, who told the Travis County Commissioners Court last week that he opposes any mitigation fees for endangered species, and that the commissioners were rushing into the BCCP. The Texas Capitol Area Builders Association, meanwhile, has done everything it can to undermine the plan, including an effort to scuttle BCCP negotiations held earlier this year.

Opposition is also coming from the national level, where homebuilders, timber companies, ranchers, and conservative lawmakers are trying to amend the Endangered Species Act when it is reauthorized by Congress. The Supreme Court could undermine the Act, and the BCCP, when it rules on the Sweet Home case. The court, which is expected to take up the case over the next few months, will decide whether habitat destruction constitutes a "take" of an endangered species.

Coupled with those uncertainties at the federal level are local uncertainties about the biological viability of the BCCP preserve system. As time passes and more people move into the region, land prices rise and the preserve sites originally targeted for acquisition may be lost to development. Thus, while funds slowly roll in to acquire habitat for the golden-cheeked warbler and black-capped vireo, that habitat land could become more expensive, more fragmented, and thus less desirable from a biological standpoint.

"If nobody develops any habitat, then we don't get any revenue," explains Aleshire. "But if someone does, then we get revenue and that is plowed back into getting preserves." Getting the preserves has been the objective all along, and the latest decision by the city and county to proceed is positive. But the long and bitter history of the BCCP suggests that the battle over Austin's endangered species is far from over, and there is no guarantee that the plan will ever be implemented. Federal officials, however, are pushing hard for the BCCP. Interior Secretary Bruce Babbitt has put a lot of effort into the local plan, and he wants to show Congress that the BCCP and the Endangered Species Act can work. No word yet on when the city and county will submit their 10(A) permit application to the feds.

SPEAKING OF ENDANGERED SPECIES: If you care about the birds and the bees, be sure to attend "The Endangered Species Act: The Third Annual Conference on the ESA and Its Impact on Growth and Development" on May 18 & 19 at the Omni Hotel. In what should be a humorous talk, David Armbrust, of the law firm Strasberger & Price, Armbrust & Brown, will discuss his many years of experience with the Balcones Canyonlands Conservation Plan. The title of his talk: "The BCCP Experience: From Here to Eternity."

Other luminaries of the environmental movement in attendance will include Texas Attorney General Dan Morales - who has sued the federal government when they tried to apply the ESA in Texas - as the keynote speaker. It appears, in fact, that the entire program consists of attorneys who have sued over the ESA or represented developers trying to get around the ESA. Lectures will be also be given by attorney J.B. Ruhl, who formerly worked here for Fulbright & Jaworski and now teaches at the Southern Illinois University Law School, plus Sen. Ken Armbrister (D-Victoria), and Jana Grote of the U.S. Fish and Wildlife Service. Tuition for the conference is $395. Call 303/377-6600 for more info.

THE PLAINTIFF'S FRIEND: Roy Q. Minton began his career as a prosecutor. He then worked as a criminal defense attorney. Today, he's finding there's more money to be made working for plaintiffs in civil cases. Minton, who is currently representing Freeport-McMoRan in their lawsuit against the city, has a new client: Tejas Testing Technology. And the payoff from the Tejas case could be even bigger than the one he's getting from Jim Bob.

Tejas has retained Minton to represent the company in a $150 million lawsuit against the state of Texas. Tejas sued the state in Travis County District Court on May 2, just hours after Gov. George Bush signed into law SB 178, a bill which bucks federal clean air laws which require Texas to begin centralized vehicle emissions testing programs in Houston, Dallas-Fort Worth, Beaumont-Port Arthur, and El Paso. Tejas was hired by the state to do the vehicle testing; the suit filed by Minton seeks to recover the costs that Tejas says it incurred in buying land, equipment, and facilities for the testing program. Attorney David Minton, who is working with his father Roy on the case, said the lawyers are meeting with officials from the Texas Natural Resource Conservation Commission to see if a settlement can be hashed out before the case goes to trial. Even if Tejas wins in court, however, there's no guarantee the state will pay. The Lege has been reluctant to pay plaintiffs who prevail in court. Minton the Younger agrees that Tejas may have a hard time getting paid, "You can't order the legislature to appropriate the money," he said.

FUN FACT: From 1984 to 1994, individual taxes rose by 20%. The April issue of Reason magazine says that last year, the average American spent "more on taxes than food, housing and clothing combined.

MOLLY IVINS CAN SAY THAT, CAN'T SHE? On May 4, Molly Ivins wrote a column in the Fort Worth Star-Telegram that assailed the Austin-bashing legislation being pushed by New Orleans-based Freeport-McMoRan. She noted that the company has the "dubious distinction of having been named the Number One polluter in the nation in 1993... Aren't we proud to have our Legislature dancing to their tune?" She went on to say, apparently not knowing the relationship between Freeport and FM Properties, that "Another major backer is FM Properties, Inc., a huge developer long at odds with Austin because of its water-quality and development regulations."

The Austin American-Statesman usually publishes Ivins' column three days after it appears in the Fort Worth paper, but her column on Freeport didn't run in the Statesman on May 7. Why not? Arnold Garcia, editorial page editor at the Statesman, said that Ivins' confusion of Freeport and FMP forced him to pull the column. "Some of her info was just flat wrong," said Garcia. "And rather than monkey with it, I just pulled it."

The column in question appears on the facing page.

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