TxDOT sued over proposed MoPac underpass project in South Austin


The state’s highway expansion plans in southwestern Travis County have attracted a second federal lawsuit, this one filed Monday asking a judge to stall the “MoPac intersections” project until its effects on endangered species have been thoroughly vetted.

Specifically, the Save Our Springs Alliance and the Arizona-based Center for Biological Diversity sued the Texas Department of Transportation, asking that TxDOT be compelled to conduct a “consultation” with the U.S. Fish and Wildlife Service about whether the 2-mile-long project near Slaughter Lane would hurt two salamander species and the golden-cheeked warbler.

And the plaintiffs ask the court to prevent TxDOT from beginning construction until the agency addresses those environmental concerns. The suit was filed on the last day of a 150-day period in which TxDOT contends such legal challenges could occur, according to Kelly Davis, an SOS attorney.

SOS, along with several other plaintiffs, filed a separate suit in February targeting the nearby MoPac South toll lanes project, contending that that project, the MoPac intersections project and the planned Texas 45 Southwest tollway should be studied together on one environmental review rather than as three separate projects, as has been the case.

TxDOT plans construction of four-lane underpasses at Slaughter and at La Crosse Avenue, about a mile to the south. The plan includes an additional entrance-and-exit lane on each side between Slaughter and La Crosse, and the Slaughter overpass would be converted to a “diverging diamond” intersection to make left turns easier.

The project, estimated in 2015 to cost $46 million, would eliminate the last traffic signals for South MoPac traffic. The existing MoPac lanes in that section would become frontage roads connecting to Slaughter and La Crosse.

Construction, TxDOT officials said last week, is expected to begin as soon as December.

But the plaintiffs contend that TxDOT, in a federal environmental review approved in December 2015, wrongly decided that construction of the project would have “no effect” on the Austin blind salamander, the Barton Springs salamander and the warbler.

The lawsuit says the construction would affect 7.4 acres of warbler habitat (the existing median in MoPac is heavily treed). It also says that crews would cut 23 feet into the limestone Barton Springs aquifer that could have caves or fissures with the salamanders, or carry polluted water to nearby sections of the aquifer that do host them.

Given that, the lawsuit says, TxDOT should initiate a formal consultation with Fish and Wildlife, a process that by law can take no more than 90 days.

TxDOT has already started that process: After the environmental groups announced their intent to sue TxDOT in May, the transportation agency reached out to U.S. Fish and Wildlife with a June 17 letter.

In that seven-page letter, TxDOT asserts that no warblers were found on the project site during a 2014 survey, and that according to a Texas Parks and Wildlife Department database, just one warbler has been spotted within a mile and a half in the past 23 years. And it says the MoPac median trees that would be removed are “marginal habitat” for warblers.

As for the salamanders, TxDOT’s letter says that the closest known cave, Blowing Sink, is more than a mile away. The construction site, TxDOT Environmental Affairs Director Carlos Swonke wrote, is not in the drainage area of any known cave.

In a June 21 letter to SOS, TxDOT said it believes the intersections project “is not likely to adversely affect” the endangered species — a shift from its earlier stance that the project would have “no effect” on the animals.

Under the consultation process, the federal regulators could agree with TxDOT about the minimal impact on the species, or they could decide that a “take” of the salamanders and warblers could occur and recommend measures to offset the damage.

The law allows TxDOT to take or leave that mitigation advice from the feds, Davis said, but it would do so at the risk of violating federal law if the project harms the endangered species. The lawsuit filed Monday, in effect, asks a judge to force TxDOT to follow U.S. Fish and Wildlife’s advice.


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