Naked City

The U.S. Fish and Wildlife Service has abandoned its job of protecting the Barton Springs salamander's aquatic environment. So says the Save Our Springs Alliance in a June 6 letter of intention to sue, addressed to Interior Secretary Gale Norton, acting FWS director Matthew Hogan, and Texas Commission on Environmental Quality head Kathleen Hartnett White.

The source of SOS's ire is the FWS decision, announced in February, to pass primary responsibility for Barton Springs water quality over to the TCEQ. Now, developers can skip the step of putting together an FWS-approved habitat conservation plan before bringing in the bulldozers, which has been the norm since the species was listed as endangered in 1997. Instead, they need only agree to a set of so-called "optional water quality measures" when they get the rest of their TCEQ permits and they're good to go. (The measures are "optional" because if a developer doesn't want to adopt them, he can instead go through the HCP process, same as always.)

FWS and TCEQ say the optional measures will do as good a job of protecting the water as the HCP system. However, HCPs have long been based on drafts of the FWS Barton Springs salamander recovery plan, which collected the best available science on preserving the species. A team of scientists and stakeholders had been working on a final plan and were just about to release it when the optional measures came down the pike as a done deal. That, says Melanie Oberlin, a former SOS lawyer who served on the recovery plan team, chucks a whole lot of work out the window.

"The dedication, time and expertise that the members of the recovery team provided to the FWS is extraordinary and it is simply unacceptable for the work we did to sit on the shelf," Oberlin said. The major difference between the optional measures and the recovery plan is that the latter includes limits on impervious cover as an essential part of protecting the species, while the optional measures do not.

"This reversal of position is unsupported by any scientific analysis, let alone the best scientific and commercial data available, and FWS has failed to provide any reasoned explanation for the new position," said the June 6 letter, which also cites three e-mails between FWS and TCEQ scientists who drafted the measures, questioning the lack of impervious cover limits in the optional measures. But FWS spokeswoman Elizabeth Slown said that neither FWS nor TCEQ had the authority to enforce cover limits. The HCP process itself was voluntary, and the recovery plan was always meant as a guide rather than any sort of binding document. "You can't just make people have authorities they don't have," she said.

Also in the letter, SOS called on FWS and TCEQ to immediately convene an "adaptive management" team to study whether the optional measures are a good idea. Such teams were part of the TCEQ plan all along – the idea is that if water quality monitoring shows water degradation, the agency would figure out how to improve the rules – that's what makes the management "adaptive." SOS, however, points to a February city of Austin study – released after the optional measures were announced – that shows statistically significant increases in pollutants in the water and postulates that upstream urbanization may be to blame. If the water quality is already in decline, SOS argues, the time for adaptation has already come.