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.
This article appears in May 19 • 1995 and May 19 • 1995 (Cover).