TxDOT can’t participate in Balcones permit program

An official with the Balcones Canyonlands Conservation Plan has informed the Texas Department of Transportation that the department is not allowed to participate in the BCCP permit in conjunction with its work on State Highway 45 Southwest.

Carlos Swonke, director of the Environmental Affairs Division of TxDOT, sent a letter in late July to Kimberlee Harvey, secretary of the BCCP Coordinating Committee, along with an application to participate in the habitat conservation plan permit and be protected from possible legal action under the Endangered Species Act. Harvey is also the Balcones Canyonlands Preserve program manager.

It is not clear what impact failure to participate in the BCCP permit might ultimately have on the highway project, which crosses endangered species territory and the recharge zone of the Barton Springs zone of the Edwards Aquifer, potentially jeopardizing the Barton Springs salamander, the golden-cheeked warbler and several cave-dwelling species, called species of concern.

According to the website www.SH45sw.com, “In 1996, the U.S. Fish & Wildlife Service (USFWS) issued a 30-year 10(a) permit jointly to the City of Austin and Travis County for incidental take covering the Black-capped Vireo, six karst invertebrates and the Golden-cheeked Warbler, which led to the establishment of the Balcones Canyonlands Conservation Plan (BCCP). The permit also covered incidental take of 27 species of concern (SOC), should any become listed as threatened or endangered during the life of the permit. 62 karst features were named in the BCCP, including Flint Ridge Cave.”

As Harvey pointed out in her response to Swonke, the highway project “is located over the surface and subsurface drainage basin of a protected BCCP cave,” namely the Flint Ridge Cave. “The regional BCCP (permit) does not allow for a Participation Certificate to be issued within the BCCP cave protection zone without a hydrogeologic study and guidance from the US Fish and Wildlife Service.”

Swonke disagreed with that assessment and offered Travis County an unspecified amount of money called “participation fees” to mitigate possible lost habitat for the golden-cheeked warbler. Travis County is a partner in SH 45 SW, and the city of Austin is not.

Harvey also pointed out in her letter that TxDOT is not eligible to participate because the agency is a governmental entity that is not a partner in the conservation plan.

However, a statement from the agency on Monday indicates that it plans to move ahead with the project regardless of whether it can participate in the BCCP permit that could mitigate those impacts and protect the agency from a potential federal lawsuit.

TxDOT spokesman Mark Cross told the Austin Monitor via email: “The application letter TxDOT submitted states very clearly that the department does not need BCCP credits to move forward. Moreover, that as a good community steward, TxDOT was offering some support for conservation projects in the area. Construction efforts by transportation authorities (Central Texas Regional Mobility Authority) are moving forward.”

Willy Conrad, who retired from the city of Austin after serving for many years as the secretary of the BCCP, told the Monitor that the regulations would clearly prohibit TxDOT or CTRMA from participating because neither is a partner. If it does not wish to become a partner, an agency could go to the Fish and Wildlife Service and request its own habitat conservation plan, he said.

In April 2015, the Fish and Wildlife Service expressed concern about what the highway might do to the cave.

Conrad said, “The rule of thumb we always talked about for developing a habitat mitigation plan was two years and $1 million.” Conrad said that before he left the city, he developed a plan for mitigating damage to an important cave, such as Flint Ridge. Such mitigation would involve the purchase of acreage that would include a variety of caves in the area to substitute for the damaged cave.

City Council Member Leslie Pool, who serves as one of two voting members on the BCP committee alongside Travis County Commissioner Gerald Daugherty, told the Monitor on Monday after hearing about the situation, “I would urge TxDOT to contact FWS as discussed in (Harvey’s) letter, and I will want to have conversations with the staff at the city. I’ll want to confer with (the environmental staff) and our legal staff. And the city needs to have a conversation with our partner at Travis County.”

Pool and Daugherty are on opposite sides of the SH 45 SW controversy, with Daugherty in favor of building and Pool opposed to building the road.

City Environmental Officer Chuck Lesniak told the Monitor, “From our perspective, we’re paying attention. It’s a federal law. I think that we would hope that the Fish and Wildlife Service would offer some guidance to TxDOT.”

Lesniak said that unless there is an injunction to prevent construction of the highway, he expects that it will start in October. “They told us they want to clear the entire right-of-way before the next (golden-cheeked warbler) season starts” in March. “They think it’s going to take that long to get the right-of-way cleared,” he said.

Save Our Springs Alliance Executive Director Bill Bunch said, “They’ve been trying to argue there wouldn’t be any warbler take anyway, and they were just doing it to protect themselves, but the science is the other way. They’re in a box.”

The SOS Alliance has sued TxDOT and CTRMA for alleged violations of another federal environmental law.

Photo by Vince Smith made available through a Creative Commons license.

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