Posted: Fri, 31 Dec 2010 08:27 AM - 8,550 Readers
By: Marty Toohey
A federal judge has dismissed one of two lawsuits seeking to stop the construction of a City of Austin water treatment plant near Lake Travis.
U.S. District Judge Lee Yeakel ruled that the federal government is not required to step in and stop work on the treatment plant, as the suit contended. Site-clearing work will continue.
The Save Our Springs Alliance, along with Environment Texas and University of Texas professor Mark Kirkpatrick, had said the U.S. Fish and Wildlife Service was obligated to halt construction until the City of Austin secured more environmental approvals.
Although that challenge has apparently ended with Yeakel 's Dec. 17 ruling, a second lawsuit filed by Save Our Springs and other groups is still pending. In that suit, the groups claim that the plant cannot be built under the terms of a complex local and federal partnership created to manage the nearby Balcones nature preserve.
In the dismissed suit, the groups argued that a legal challenge was necessary because the treatment plant violates the spirit of the Endangered Species Act by putting the Jollyville Plateau salamander, which lives nearby, at risk.
City attorneys called the suit baseless because the salamander is not listed as endangered and therefore not covered under the law.
The salamander is on a list of animals the federal government is planning to add to the list, but the bureaucratic process of naming new endangered species can take years.
If the salamander is designated as endangered while the treatment plant is under construction, the project could potentially be delayed for years while federal and local officials go through a painstaking permitting process.
The city has been planning to use a federal program that allows local and federal officials to negotiate construction and environmental standards that would be acceptable in the event the salamander is added later to the endangered list.
Save Our Springs had argued the possibility of such a deal means the treatment plant should be immediately subject to stricter federal construction standards and that work must stop until those permits are in hand.
The city countered that because such an agreement is not in place — and may never be — construction should be allowed to continue.
Ultimately, Yeakel sided with the city. There is no agreement in place, so federal standards don't apply, according to his ruling, and even if there were an agreement, he said a court could not intervene.
Save Our Springs Executive Director Bill Bunch said Yeakel's ruling came after suspicious maneuvering by the city.
Bunch points to Dec. 7 correspondence in which the city says it was no longer negotiating with the Fish and Wildlife Service about the federal agreement. Bunch accused the city of breaking off talks to ensure that a federal partnership — and the accompanying rules — don't happen.
"The city is basically willing to fly blind on environmental permitting to get this thing built," Bunch said. "They know it can't be built under federal standards."
Chuck Lesniak , a manager in the city's watershed protection department, has said that's not accurate and that the project won't hurt the environment.
Lesniak said the city is still pursuing the agreement with the federal government and said Bunch is mischaracterizing the talks between the city and the Fish and Wildlife Service.
"It was never formal negotiations," Lesniak said. "We were just trying to get guidance from their end on a complex process that we've never gone through before. They told us recently they don't have the manpower to walk us through this.
"We haven't broken off our efforts," he said. "We're still working toward getting that agreement in place."
Environmental groups have long said that the treatment plant, which is expected to cost more than $500 million, would not be necessary if the city adopted more extensive water conservation measures.
City officials have argued that without the new plant, Austin could face water shortages as early as 2014.
