The Save Our Springs Alliance, with one legal avenue to stopping construction of Texas 45 Southwest seemingly blocked and bulldozers already clearing land, has signaled it will challenge the project on other grounds.
The environmental group last month sent the Texas Department of Transportation and the Central Texas Regional Mobility Authority a “notice of intent to sue” over Texas 45 Southwest, charging in the 14-page letter that the two agencies have violated the federal Endangered Species Act in pursuing the tollway’s construction.
Officials with the mobility authority, which has cleared about a third of the 3.6-mile right of way, said it plans to continue that work and start earth-moving on the project no later than mid-February.
SOS, using logic rejected this fall by a federal judge, argues in its Nov. 4 letter that Texas 45 Southwest should be considered a federal project — despite being funded solely with state tax dollars — because it is inextricably linked to two South MoPac Boulevard projects that will use federal funds. Given that, the letter says, TxDOT and the mobility authority ran afoul of the 1973 federal endangered species law by failing to consult with the U.S. Fish and Wildlife Service.
The route of the proposed $108 million, four-lane road runs over the Barton Springs segment of the Edwards Aquifer, home to the endangered Austin blind salamander and a conduit to Barton Springs, home to its own endangered salamander. And as many as 153 endangered golden-cheeked warblers have been spotted over the past 15 years in the vicinity of the Texas 45 Southwest corridor, the letter asserts.
But regardless of whether a court were to find that Texas 45 Southwest is a federal project, the letter says, the project and the agencies would still be subject to other provisions of the Endangered Species Act prohibiting the “take” of those species. A “take,” in legal terms, covers actions that directly or indirectly harm the species or its habitat.
“In particular,” the Nov. 4 letter from SOS Executive Director Bill Bunch and attorney Kelly Davis says, “construction of (Texas 45 Southwest) will directly harm the listed salamander species by delivering habitat-destroying sediment and other pollutants directly into salamander habitat.”
The mobility authority declined to address the letter’s argument, saying only that it plans to send a detailed response to the U.S. Fish and Wildlife Service (rather than SOS) in the coming days.
The SOS Alliance and Bunch have resisted construction of Texas 45 Southwest for many years, contending that the current project from FM 1626 to South MoPac’s south end is a precursor to a second phase from FM 1626 to Interstate 35. If both segments were built — and that second segment is in Central Texas’ long-range transportation plan — Texas 45 Southwest and MoPac would then become a western loop through Austin that would radically increase truck and car traffic on MoPac, Bunch has long argued.
SOS, along with 11 other plaintiffs, including two former Austin mayors and musician Jerry Jeff Walker, filed a federal lawsuit in February over the project under the National Environmental Policy Act. U.S. District Judge Lee Yeakel in October rejected the plaintiff’s motion for an injunction preventing the start of Texas 45 Southwest construction. Yeakel’s ruling, coming after a full day in court that essentially laid out arguments to be made at a final trial, ruled that SOS and its partners did not have a “substantial likelihood” of prevailing in the end.
A three-judge panel of the 5th U.S. Circuit Court of Appeals upheld Yeakel’s ruling Nov. 4, the same day SOS filed the 60-day notice of its intended challenge under the federal Endangered Species Act. Clearing of the Texas 45 Southwest right of way started Nov. 8.
This latest lawsuit, assuming SOS files it in January, once that required 60 days has elapsed, probably would not prevent any land clearing, which is likely to be mostly complete by then. But it could stop or at least delay construction of the road and use of it by motorists.