A Texas Department of Transportation attempt to loosen the environmental knot stalling construction of the Texas 45 Southwest toll road was recently rejected by local officials.
And in doing so, the staff of the Balcones Canyonlands Conservation Plan also rebuffed more than a quarter of a million dollars from TxDOT that would have been used to buy and set aside golden-cheeked warbler habitat in western Travis County, according to former Travis County Judge Bill Aleshire, who helped birth the conservation plan two decades ago.
The decision last week to spurn TxDOT’s offer doesn’t settle the fate of the proposed 3.6-mile tollway, which will likely be decided by a judge looking at other issues. But it does complicate matters for the agencies seeking to build the four-lane tollway at the south end of MoPac Boulevard.
Looking to inoculate the project against any potential Endangered Species Act violations, TxDOT applied in late July to the staff of the Balcones Canyonlands Conservation Plan, a jointly managed creature of the city of Austin and Travis County that obtained a federal permit in 1996. Under that plan, tens of thousands of acres of endangered bird habitat in the Austin area have been purchased and set aside over the past 20 years, allowing developers to build on other land that includes, or could include, nesting areas of the warbler and the black-capped vireo.
In this case, TxDOT wanted to mitigate any potential harm to the warbler, an endangered species, when it builds Texas 45 Southwest. It offered to make a payment to the conservation plan based on the entire 158.5 acres involved in the road project, in exchange for being covered by the Balcones permit to remove vegetation along the tollway.
The answer was no
The plan’s administrator wasn’t interested in the quid pro quo.
Kimberlee Harvey, an Austin Water employee who doubles as the coordinating committee secretary for the conservation plan, told TxDOT in an Aug. 24 letter that Texas 45 Southwest “is not eligible to participate” in Balcones’ umbrella federal permit. First of all, she wrote, the highway’s right of way lies over Flint Ridge Cave, one of 62 critical “karst” features mentioned in the Balcones plan. The cave hosts spiders that, while not listed as endangered, are considered “species of concern.”
Beyond that, Harvey wrote, TxDOT isn’t a partner in the conservation plan and thus isn’t eligible as a government to use it to mitigate environmental damage elsewhere.
TxDOT and the Central Texas Regional Mobility Authority dispute both points, noting that TxDOT and the Lower Colorado River Authority have been allowed to participate in the plan in the past. And TxDOT wrote that its Texas 45 Southwest construction plan directs drainage away from the mouth of Flint Ridge Cave, which is 350 feet east of the highway’s path.
“We would have liked to see our participation fees directly contribute to (conservation) efforts in Travis County,” said Mike Heiligenstein, executive director of mobility authority, which would build and operate the tollway.
Austin Water Assistant Director Daryl Slusher, who supervises the section that oversees the conservation plan, said that what TxDOT was willing to pay is beside the point.
“The goal of the BCCP is to protect various species and the caves,” Slusher said. “Our staff made the decision based on those factors, not on financial factors. We followed the permit, which we’re entrusted with enforcing.”
U.S. Fish and Wildlife
Harvey, in her letter, advised TxDOT to talk to the U.S. Fish and Wildlife Service about obtaining a separate permit. That process, officials have said, could delay by years construction on a project that has been on local transportation planning maps since the 1980s.
TxDOT, it appears, likely won’t take Harvey’s advice.
“The application letter TxDOT submitted states very clearly that the department does not need BCCP credits to move forward,” TxDOT spokeswoman Veronica Beyer said in an emailed statement in response to American-Statesman questions. “As a good community steward, TxDOT was offering some support for conservation projects in the area. Construction efforts by transportation authorities are moving forward.”
Heiligenstein added that the agency will conduct one last bird-spotting survey before beginning construction, will have a biological monitor on site throughout the project and will do all clearing of vegetation during the part of the year when warblers aren’t nesting.
Bill Bunch, executive director of the Save Our Springs Alliance, said this week that TxDOT should seek a U.S. Fish and Wildlife Service permit.
“There is (warbler) habitat all around there,” Bunch said, despite TxDOT saying in an environmental impact study approved last year for Texas 45 Southwest that no “take” of the species would occur through the project. A city biologist, observing from adjacent city preserve land, earlier this year heard the song of a warbler and then saw one on the Texas 45 Southwest right of way.
“The take-home of this to me,” Bunch said, “is that (TxDOT) wanted to have some protection in place on the incidental take issue. That door has been closed on them.”
The critical legal path for Texas 45 Southwest goes through the chambers of U.S. District Judge Lee Yeakel, who is presiding over a lawsuit contending that this project should have been grouped with two others proposed for South MoPac Boulevard and studied environmentally as a single project. A motion to dismiss that case is pending before Yeakel.
The Central Texas Regional Mobility Authority, deputized by TxDOT to build and operate Texas 45 Southwest, this summer awarded a $78.6 million construction contract to McCarthy Building Cos. Work would begin as early as October, absent a court injunction to prevent it.