Mercury, Cadmium, Arsenic, Grease ...
Fish & Wildlife Report Faults EPA for Degradation of Barton Springs Watershed
Last December, environmentalists and developers each claimed victory after reaching a settlement on separate lawsuits the two sides had filed against the federal government -- for diametrically opposed reasons: The Save Our Springs Alliance sought stiffer development regulations in the Barton Springs watershed, while the Texas Capital Area Builders Association wanted the U.S. Fish & Wildlife Service to loosen its regulatory grip.
Now, nearly eight months after the double-edged victory, the builders are crying foul -- this time because a Fish & Wildlife report released last week says pollution levels in Barton Springs indicate the Environmental Protection Agency is not enforcing development regulations in the watershed. Furthermore, the "draft biological opinion" states, Barton Springs and its endangered salamander are suffering as a result of lax enforcement. The wildlife service findings point to high levels of mercury, cadmium, arsenic, oil, and grease, among other pollutants, in Barton Springs, the main drinking water source for some 45,000 residents in southern Travis County and northern Hays County. The springs also make up a portion of the water that flows into the Tom Green Water Treatment Plant, which provides drinking water for Central and East Austin residents.
The report -- and its findings -- did not come as a surprise. Under the terms of the settlement that went into effect in April, the wildlife service would review the EPA's implementation of the "construction general permit" process, which authorizes the discharge of storm water associated with construction activity in the watershed. For all developments of more than five acres, builders must obtain such a permit, but first they must ensure that the construction will not harm any endangered species. Since 1999, the EPA has issued 3,615 of these permits to developers in Travis County. Agency spokeswoman Cynthia Fadden attributed the apparently high number to the fact that several permits may be required for one project.
Fadden said the EPA would not comment on the Fish & Wildlife report before the agency files its written response later this month. Either way, the ball is now in the EPA's court. The agency may decide to tighten its regulatory grip -- which will surely draw another lawsuit from TxCABA, the builders association. On the other hand, the EPA could opt to do nothing, in which case SOS would likely sue. Or, the two federal agencies could hash out their differences and negotiate a compromise on the permitting process. Should the EPA decide to enforce stricter laws, they could, in principle, reverse or overrule a 1999 state law that granted some developments "grandfather" status, meaning they can proceed under old, less stringent regulations.
Meanwhile, David Frederick, the regional administrator of Fish & Wildlife in Austin, stands by the findings in the draft report, and says more information is on the way. "Everything in that report is based on science, and the science says the system is broke," he said. "So let's fix it." Frederick added that the EPA had known of the wildlife service's concerns long before the report was released last week, but had never responded to those concerns.
SOS Executive Director Bill Bunch said the report bears out the need for a "very strict ordinance" to regulate construction in the watershed. "Fish & Wildlife has been trying to be nice, not dictatorial, but the EPA has refused to do anything about the problem," Bunch said.
As the wildlife service and environmentalists see it, the EPA -- not the developer -- should be responsible for determining whether storm water discharge from a construction site will jeopardize natural habitat areas. "Developers shouldn't be certifying their own projects," said environmental lawyer David Frederick, who represents the Save Barton Creek Association and is often confused with Fish & Wildlife's David Frederick. "It has to be more than the developer saying, 'I'm a good guy and I'll put up some fences and everything's going to be okay.' But these developers just fill out their paperwork and ship it off ... and within 48 hours they can begin construction. They might not have their permit, but technically they are covered under the law."
Grandfathers Playing Jeopardy
Like the EPA, TxCABA will also issue a response to the Fish & Wildlife report, which the group expects to release this week or next. TxCABA, which is also familiar with Fish & Wildlife's longstanding concerns, hired an independent consultant to conduct an environmental study that will no doubt counter the wildlife service's findings.
Harry Savio, executive vice president of the builders group, said he was especially taken aback by Fish & Wildlife's assertions that at least 24 construction projects underway in the watershed were without EPA permits. Savio said he did some investigating of his own late last week and found that the developments have since received permits.
Still, both Fish & Wildlife and environmental representatives argue that the real crux of the problem is that the EPA gives builders carte blanche in determining the potential for environmental hazards at the construction site. Attorney Frederick said that the Save Barton Creek Association had at one time considered filing a lawsuit against one developer -- Prentiss Properties -- for not having a required storm water pollution prevention plan in place, and for allowing storm water to flow into Barton Creek without an EPA permit. (TxCABA's Savio says the property now has a permit.) Prentiss, a Dallas-based company, is developing a 20-acre site (formerly known as the Bradfield Tract) at the southeast corner of MoPac and Capital of Texas Highway. Two five-story office buildings are planned for the property, which is just up the hill from Barton Creek and within the Barton Creek Greenbelt.
Last week, TxCABA and its legal counsel, the law firm of Smith Robert Elliott & Glen, went on the offensive and attacked the Fish & Wildlife report. Craig Douglas, an attorney with the firm, argued that the findings are flawed because the report relies on old data and does not draw a direct link between the EPA's permitting procedures and the "jeopardy" of salamanders. "The legal standards are very high for calling 'jeopardy' on a species," Douglas said. "Where are the population numbers that show that salamanders are in jeopardy? We believe 'Fish' is way off base here. They're not putting their money where their mouth is, and if they are, they're several bucks short."
According to the Fish & Wildlife report, however, no technology exists today to "safely and reliably" mark salamanders for individual recognition, which would be the best way to form population estimates. The study cites anecdotal information indicating the salamander was much more abundant prior to the Eighties.
If any one entity is responsible for analyzing the impact of construction on Barton Springs, it should be the EPA, said Frederick, the environmental lawyer. "I think the Fish & Wildlife Service has done a good job with the information available," Frederick said. "The problem is the absence of good data, and I'm a little surprised that this has not been a high priority for the EPA or the TNRCC [Texas Natural Resource Conservation Commission]. It is fair to blame both for not attempting to collect good data." On the other hand, Frederick continued, "There's no political support for EPA to really get into land-use control. Kay Bailey Hutchison doesn't like land-use control. Phil Gramm doesn't like it, neither does Tom DeLay. So there you have it."
What's on the Table?
In the middle of this fray is Fish & Wildlife's Frederick, who is no stranger to the slings and arrows aimed at him from both sides. Over the years, Frederick has managed to irk environmentalists and developers alike. If that's the case, he said, "I must be doing my job."
Last year, environmentalists were questioning more than Frederick's science. The wildlife service official shocked opponents of the Longhorn Pipeline when he concluded it would have no effect on the environment, even though the aging, converted crude line would move gasoline products across the watershed. Frederick drew the most fire, however, after The Good Life magazine broke the news that he had attended a $1,000-a-pop Democratic fundraiser in Austin, where President Clinton was the guest of honor. The fundraiser wasn't the issue, but that Frederick and his wife attended the event at the invitation of a lobbyist for the pipeline -- former Lt. Gov. Ben Barnes. At the time, the wildlife service and Longhorn officials were negotiating a proposal to move gasoline from Houston to El Paso, by way of South Austin. Frederick also raised environmentalists' hackles last year after he signed off on the construction of a water pipeline that would provide Lake Austin water to Dripping Springs residents. Local greens and many Hays County homeowners opposed the water line, fearing it would only lead to more development in the rural area.
Frederick stands by every one of his conclusions. "I don't care which way the political winds are blowing," he said, "everything I do, every opinion I form, is based on science. And right now," he added, referring to his latest findings, "the only science on the table is mine."