FEDERAL DISTRICT COURT UPHOLDS USFWS
 BIOLOGICAL OPINION ON EPA STORMWATER
 PERMIT IN CENTRAL TEXAS

U.S. District Judge Sam Sparks recently sustained the U.S. Fish and Wildlife Service's (FWS) biological opinion on the continued operation of the EPA's Construction General Stormwater Permit (CGP) in the Barton Springs watershed in Central Texas. As a result of the decision, CGP permittees were able to maintain their authorizations until the State of Texas issued its own general permit under the TPDES program in March 2003. In the case, Save Our Springs Alliance v. Cooke, et al., Smith|Robertson attorneys Alan Glen and Craig Douglas represented the National Association of Home Builders and the Home Builders Association of Greater Austin, who intervened as defendants along with the EPA and FWS.

The court's decision in this case may conclude a long process of ESA consultation and litigation regarding the stormwater general permit program and the effects of the development it authorizes on the endangered Barton Springs salamander. FWS initially issued a draft opinion that concluded that the only way EPA could avoid jeopardizing the salamander with the CGP was to impose stringent impervious cover restrictions (usually allowing only 15% on any given site) and other development limitations throughout the watershed. However, FWS and EPA subsequently reconsidered the issues and took comments from interested parties, including the homebuilders, as part of a process that led to EPA's preparation of a comprehensive water quality analysis, which FWS considered in its preparation of the final biological opinion. Ultimately, FWS concluded that the operation of the CGP would not jeopardize the salamander, based on the controls in the permit and the adequacy of state and local water quality regulations.

The biological opinion (and by extension the permit itself) was challenged by the Save Our Springs Alliance (SOSA), which alleged that FWS had made an unscientific, politically motivated decision. Judge Sparks disagreed with SOSA, and ruled that FWS and EPA had acted within the scope of their authority in issuing the biologocal opinion and operating the permit. To read a copy of Judge Sparks's opinion and order denying SOS's motion for summary judgment, and granting the cross-motions for summary judgment filed by the builders and the government, click here.

For more information, please contact Craig Douglas at cdouglas@smith-robertson.com.

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