The Austin Chronicle

https://www.austinchronicle.com/news/2004-08-27/226224/

Lick Creek Goes to Court

By Amy Smith, August 27, 2004, News

Guardians of Lick Creek, a group of residents fighting the environmentally troubled West Cypress Hills subdivision, has filed its anticipated lawsuit against the development on claims that the site's pollution-control failures destroyed the once-crystalline creek. The group filed the petition Aug. 19 against Rusty Parker and his business concerns of Cypress Ranch Ltd. and Cypress Ranch Development Inc. The project's engineer, Ed Moore, is also named in the suit.

The legal action comes just two weeks after regulatory authorities said they were satisfied with corrections taken at the project's detention pond and dam, located on the creek's eastern fork. In the last year, agencies cited numerous pollution-control failures, which had caused silt and other pollutants to spill into the creek. Both the county and the Lower Colorado River Authority had ordered construction halted at the site for 48 days until the pond and dam were brought into compliance. A final follow-up inspection earlier this month gave the developer clearance to resume construction. Nearly 700 homes are planned for the two-phase project taking shape off of Highway 71 in western Travis Co.

Parker said he was surprised by the lawsuit in light of the progress made at the site. "I'm frankly flabbergasted," he said. "We've done everything the agencies have asked us to do. But it's a free country, and people can sue anybody they want." He pointed out that the newly hydromulched and revegetated pond will prevent further soil erosion, and that an LCRA-recommended bypass pipe will keep creek water from flowing into the pond. Also, he said he had hoped the Guardians would not pursue the lawsuit based on what he thought had been a positive meeting last week – two days before the petition's filing – between his attorney and lawyers for the plaintiffs.

In June, the group filed a 60-day notice of intent to sue, and all signs since then have suggested the residents would follow through with a lawsuit in August. Melanie Oberlin, an attorney with the Henry & Poplin law firm, which brought the action, said problems at the creek continue, as evidenced by residents' reports that the creek went from murky to muddy following last weekend's rainfall. Neighbors who live near the creek say that before the development broke ground in 2003, the waterway had always returned to its pristine state within 24 hours after a rainfall. Oberlin said that test results from the water samples could prompt plaintiffs to seek a preliminary injunction to halt construction pending a trial.

Attorneys made a strategic decision to file the lawsuit in state district court rather than federal court, the more typical venue for claims brought under the Clean Water Act. "Local judges might feel more inclined to protect the local environment," Oberlin said. Similarly, the plaintiffs have a greater chance of winning a favorable verdict from local jurors than from out-of-county residents on a federal jury. State courts also move with greater speed on setting trial dates. For those reasons, Parker's attorney, Michael McCrea, of Dubois, Bryant, Campbell & Schwartz, will have some strategic decisions of his own to make; he has 30 days to seek a transfer to federal court. McCrea said he's considering that option. McCrea also questioned what standing the claim would have under the Clean Water Act, considering the amount of regulatory oversight that's gone into the completion of the pond. "One of the top engineers for the LCRA, the top engineer for the county, and one of the top engineers for the TCEQ [Texas Commission on Environmental Quality] have all inspected the pond, they've approved it, and they've all said 'this is the way it should have been done.' This is a case of [the plaintiffs] not liking what they said."

In the lawsuit, the plaintiffs charge the developer with five counts of wrongdoing, including failure to obtain proper permits and failure to follow state and federal environmental laws. If Parker is found at fault, a court may order him to completely revamp the project's pollution-control measures by removing the dam and building new detention ponds further away from the creek. The Guardians also seek to have costs awarded to pay for the restoration of the creek and to cover past and future expenses associated with monitoring the creek's health.

Meanwhile, work at West Cypress Hills continues. Parker said he is seeking LCRA approval to draw water from Lake Travis so that the subdivision could rely on a combination of both lake water and ground water. Other projects are also on the drawing board. Parker said he is considering expanding his development options on an adjacent site. The property is one of many pieces of environmentally sensitive Hill County terrain that investors have staked out for new subdivisions over the next few years.


*Oops! The following correction ran in our September 3, 2004 issue: Due to an editing error in last week's news feature "Lick Creek Goes to Court," the following passage (including comments from Michael McCrea, lawyer for West Cypress Hills developer Russell Parker) was inadvertently omitted: McCrea said he's considering that option. McCrea also questioned what standing the claim would have under the Clean Water Act, considering the amount of regulatory oversight that's gone into the completion of the pond. "One of the top engineers for the LCRA, the top engineer for the county, and one of the top engineers for the TCEQ [Texas Commission on Environmental Quality] have all inspected the pond, they've approved it, and they've all said 'this is the way it should have been done.' This is a case of [the plaintiffs] not liking what they said." We regret the error.

*This story has been corrected from its original publication.

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