No Surprises in City's Answer to WTP4 Suit
Water plant controversy keeps on churning
By Nora Ankrum, Fri., Aug. 27, 2010
The city on Monday filed a motion to dismiss a lawsuit – filed July 29 by the Save Our Springs Alliance – over alleged environmental violations related to the ever-controversial Water Treatment Plant No. 4. (That's not to be confused with another, somewhat similar potential lawsuit involving a slightly different group of actors.) Lest you think the city's move for dismissal indicates progress, you may want to think again.
"This is almost always the first motion that a defendant in a federal lawsuit files," says David Frederick, attorney for the plaintiffs. "It's very conventional to file some motion that says, basically, 'The court doesn't have jurisdiction over me.'"
SOS and fellow plaintiffs Environment Texas and University of Texas Austin biology professor (and SOS science officer) Mark Kirkpatrick are accusing the city – along with the U.S. Fish and Wildlife Service and U.S. Secretary of the Interior Kenneth Salazar – of violating the National Environmental Policy Act and the Texas Parks and Wildlife Code. WTP4's proposed transmission lines cross, in part, the Balcones Canyonlands Preserve, home to several endangered species (such as the golden-cheeked warbler and the black-capped vireo) as well as the Jollyville Plateau salamander, a candidate species for the endangered list. While the city has a permit under the Balcones Canyonlands Conservation Plan to build in the habitat of the already listed endangered species, it stands in legal limbo in regard to the wait-listed salamander.
According to Chuck Lesniak of the city's Watershed Protection and Development Review Department, if the salamander gets bumped up to the endangered list, the city will then likely have to suspend the WTP4 project – along with any others in the area – while the city develops a habitat conservation plan and acquires a permit as required by NEPA. "That process can take several years," says Lesniak. To avoid that scenario, the city has entered into negotiations with the Fish and Wildlife Service to secure a Candidate Conservation Agreement With Assurances. Such an agreement would allow the city to "develop conservation measures like you would for a habitat conservation plan, to get ahead of the listing and start doing things the right way," says Lesniak. "That way, if the salamander does get listed, you already have a permit and it becomes active at that point."
SOS Alliance Executive Director Bill Bunch says the city is in violation of NEPA because it is going forward with construction activity prior to completion of the environmental assessment that is part of the CCAA process. "If the City wants an agreement with FWS at the end of the process, which is the stated plan, then they cannot build the plant now while the NEPA studies in support of the CCAA are under way," said Bunch via e-mail. "You have to study first and then build after the studies are approved by FWS." According to the lawsuit, the city's activities not only constitute an undertaking that could "have an adverse impact on the environment," but they also "commit resources prejudicing selection of alternatives before making a final decision" – both normally forbidden prior to completion of a NEPA assessment. "The core of NEPA is that you look at alternatives that are less damaging, and at least one of those alternatives should be building the plant somewhere else instead of in the middle of a habitat for eight different endangered species," says Bunch. Other alternatives, he says, would include "doing something that's not even a plant, like conservation and fixing your leaky pipes – meeting the purpose some other way." In the motion to dismiss, the city argues that its actions "are not major federal actions" and therefore are not subject to NEPA. Frederick disputes that, however, saying that because Austin is the "agent" for FWS, its actions do fall under NEPA. "The law is crystal clear that Fish and Wildlife Service may not take, or allow others to take, actions that undermine the environmental analysis before the environmental analyses have been completed," he says. "SOS doesn't believe that federal law will allow a nonfederal actor [the city], acting as the agent for the federal actor [FWS], to take those actions that the federal actor could not itself take."
According to Lesniak, the city's own environmental commissioning process – "an intensive environmental review of Water Treatment Plant Four projects" that has been ongoing for almost four years – actually "looks beyond just what the regulatory requirements are." Furthermore, he says, if the city secures a CCAA, which involves an Environmental Assessment under NEPA, the city would be doing more than it eventually would under a traditional habitat conservation plan. Not only would "all conservation measures have to start immediately, even though the listing may never occur," he says, but the city "would have to meet a higher protection standard" than it otherwise would. Rather than meeting a "do no harm" standard, says Lesniak, the city would be required "to make the situation better for the species."
Bunch says he'd have no problem with the environmental commissioning process "if they had completed it and it told us what they're going to do and how they're going do it and why it's safe to do it that way. ... The most important part is the question: Are they going to screw up these springs and how much?" Bunch also contests the CCAA's ability to guarantee higher protection standards for the salamander. As even Lesniak points out, under a CCAA, the "city's actions alone are not expected to provide for the recovery of the species." Yet the CCAA process, says Bunch, sets "policy for the entire survival of the species with no one else in the room. Everybody else is locked out: developers, homeowners, Williamson County, Travis County, Round Rock. ... If you're having to shape a policy for the entire range of the species, then that should be an open process where stakeholders participate and not just an inside deal between the city and Fish and Wildlife."
SOS' next move, says Frederick, depends on how the negotiations play out. If all goes according to the city's plans, FWS will make its decision by next summer, which should allow construction of the plant to stay on schedule. In the meantime, there's that other pesky "intent to sue" letter to keep everyone on their toes. The city, FWS, and Travis County – accused by SOS and the Austin Chapter of the Sierra Club of failing to protect the endangered species under the Balcones Canyonlands Conservation Plan – have until early October to respond to that letter.
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