Save Our Springs Vs TxDOT & U.S. Fish and Wildlife

Case 1:19-cv-00762 Document 1 Filed 07/29/19 Page 1 of 26
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SAVE OUR SPRINGS ALLIANCE, Inc., §

a non-profit organization, §
§
Plaintiff, §
§ 19-CV-762
Case No.________________________
v. §
§
TEXAS DEPARTMENT OF §
TRANSPORTATION; §
UNITED STATES FISH AND WILDLIFE §
SERVICE, §
§
Defendants. §
§
PLAINTIFF’S ORIGINAL COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1. Plaintiff Save Our Springs Alliance, Inc. (“SOS”) challenges Defendant U.S. Fish
and Wildlife Service’s (“the Service”) and Defendant Texas Department of Transportation’s
(“TxDOT”) compliance with Section 7 of the Endangered Species Act and its implementing
regulations in their consultation on the Oak Hill Parkway Project (“the Project”)—a
highway expansion and grade separation project in Travis County, Texas. Specifically, SOS
challenges Defendants’ determination and concurrence that the Project is not likely to
adversely affect the federally endangered Austin Blind Salamander or Barton Springs
Salamander. SOS also challenges TxDOT’s failure to ensure that the Project does not
jeopardize the survival of the Austin Blind Salamander or the Barton Springs Salamander
through its reliance on the Service’s unlawful concurrence, and the Defendants’ failure to
reinitiate consultation in light of new information about the Project’s impacts.
2. The Endangered Species Act (“ESA”) requires that each federal agency
consult with the Service to ensure that any federal action undertaken is not likely to
jeopardize the survival of threatened or endangered species or adversely modify critical
habitat. Interagency consultation is a central feature of the ESA’s framework for protecting
endangered and threatened species. In fulfilling these requirements, each agency must use
the best scientific and commercial data available.
3. Through this Complaint, Plaintiff Save Our Springs Alliance seeks injunctive
and declaratory relief, including an order enjoining construction on the Project pending
Defendants’ full compliance with the law.
JURISDICTION
4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question
jurisdiction); 23 U.S.C. § 327(c)(3)(B) and Tex. Transp. Code § 201.6035 (consent to federal
jurisdiction and waiver of sovereign immunity); 16 U.S.C. § 1540(g)(1)(A) (ESA citizen suit
provision); and 5 U.S.C. § 702 (Administrative Procedure Act).
5. Plaintiff provided TxDOT and the Service with at least sixty (60) days’ notice
of the ESA violations alleged herein as required by 16 U.S.C. § 1540(g)(2)(A). Defendants
have not remedied the violations set out in the 60-day written notice letter.
6. Venue is proper in this Court because Defendant TxDOT resides here, and the
violations giving rise to the claims occurred in this judicial district. See 28 U.S.C. § 1391(b)
& (e); 16 U.S.C. § 1540(g)(3)(A). Defendant the Service also has an office within this district,
the Austin field office, which sent the letter unlawfully concurring with TxDOT’s
conclusions. Thus, venue is also proper because a substantial part of the events or
omissions giving rise to the claim occurred in this judicial district. See 28 U.S.C.
§ 1391(e)(1).
PARTIES
7. Plaintiff Save Our Springs Alliance, Inc. is a nonprofit charitable corporation
established in 1992 to protect the land, water, and wildlife of the Edwards Aquifer region
and the natural and cultural heritage of the Texas Hill Country, with a special emphasis on
Barton Springs. SOS and its members engage in a range of outdoor education, conservation-
oriented research, and conservation advocacy activities—including, among others, filing
written comments in the environmental study process for the Project. SOS members
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regularly swim in Barton Springs and Barton Creek downstream of Backdoor Springs; hike
and bike on the Barton Creek greenbelt and the Williamson Creek Greenbelt trails directly
adjacent to U.S. 290 in the proposed project area; and enjoy the heritage trees and natural
setting of the Oak Hill area near the “Y.” SOS members include scientists and citizen
scientists who study and work to protect the endangered Barton Springs Salamander and
Austin Blind Salamander. SOS members petitioned to list the Barton Springs Salamander as
endangered in 1992, and SOS brought successful legal action that led to the listing of the
Barton Springs Salamander as endangered.
8. SOS members include those who have studied the Austin Blind Salamander
and Barton Springs Salamander, visited the areas where they are known to occur, and
evaluated their habitat requirements. They use these areas to observe the quality of
endangered salamander habitat and the habitat of other wildlife; for research; for
photography; for aesthetic enjoyment; and for recreational and other activities. SOS
members derive professional, aesthetic, spiritual, recreational, economic, scientific, and
educational benefits from these listed species and their habitats. Those members have
concrete plans to continue to travel to and recreate in areas where they can observe Austin
Blind Salamander and Barton Springs Salamander habitat and potentially the salamanders
as well, and they will continue to maintain an interest in these species and their habitats in
the future.
9. Some SOS members also live within one mile of the Project area and would
be harmed by water, air, and noise pollution and visual intrusion caused by the
construction and operation of the Project. Some SOS members regularly drive through the
“Oak Hill Y,” where they enjoy the historical cliffs, heritage trees, and parks within and
alongside the US 290 and SH 71 right-of-ways.
10. As proposed, the Oak Hill Parkway Project will cause direct harm to SOS and
its members’ interests in conservation, outdoor education, aesthetic, and natural and
cultural heritage values of the Oak Hill area, Williamson Creek and its tributaries, the
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Barton Springs segment of the Edwards Aquifer, and the springs that flow from the Aquifer.
In addition, public health interests of SOS and its members will be harmed by the planned
construction and operation of the Oak Hill Parkway Project.
11. The Service’s arbitrary concurrence and TxDOT’s reliance on this unlawful
concurrence results in a failure to ensure that the survival and recovery of the Austin Blind
Salamander and the Barton Springs Salamander are not jeopardized; this failure has
adversely affected and continues to adversely affect SOS and its members’ interests.
12. Unless the requested relief is granted, SOS’s interests will continue to be
adversely affected and injured by Defendants’ failure to comply with the ESA and the
Administrative Procedure Act, as well as the resulting harm to the Austin Blind Salamander
and Barton Springs Salamander and their habitats if TxDOT is allowed to begin
construction of the Project. These are actual, concrete injuries from which SOS and its
members presently suffer, and they are directly caused by Defendants’ violation of the
ESA’s mandate to ensure the Project is not likely to jeopardize the listed species. SOS’s
injuries will be redressed by the relief sought. SOS has no other adequate remedy at law.
13. Defendant Texas Department of Transportation is a state agency with its
principal executive offices located at 125 East Eleventh Street, Austin, Texas, 78701. In
December 2014, the State of Texas and TxDOT entered into a formal memorandum of
understanding with the Federal Highway Administration (“FHWA”) establishing that, for
transportation-related actions that are the subject of this lawsuit, TxDOT is acting in the
capacity of a federal agency, specifically as FHWA.
14. Defendant U.S. Fish and Wildlife Service is an agency within the U.S.
Department of the Interior. It and its officers are responsible for administering the ESA,
particularly regarding potential impacts to freshwater fish and wildlife species that have
been listed as threatened or endangered with extinction pursuant to the ESA.
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LEGAL BACKGROUND
15. Congress enacted the ESA, in part, “to provide a means whereby the
ecosystems upon which endangered species and threatened species depend may be
conserved … [and] to provide a program for the conservation of such endangered species
and threatened species…” 16 U.S.C. § 1531(b).
16. The ESA vests primary responsibility for administering and enforcing the
statute with the Secretaries of Interior and Commerce. The Secretaries of Interior and
Commerce have delegated this responsibility to the U.S. Fish and Wildlife Service and the
National Marine Fisheries Service, respectively.
17. When a species has been listed as threatened or endangered under the ESA,
all federal agencies—including TxDOT as a delegate of FHWA—must ensure that their
programs and activities comply with the ESA.
18. To this end, Section 7(a)(2) of the ESA requires that “each federal agency
shall, in consultation with and with the assistance of [the Service], insure that any action
authorized, funded, or carried out by such agency (hereinafter … “agency action”) is not
likely to jeopardize the continued existence of any endangered species or threatened
species or result in the destruction or adverse modification of habitat of such species which
is determined by [the Service] … to be critical.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. In
fulfilling these requirements, agencies must use “the best scientific and commercial data
available.” 16 U.S.C. § 1536(a)(2).
19. An action would “jeopardize the continued existence” of a species if it
“reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood
of both the survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02.
20. An agency must initiate consultation under Section 7 whenever its action
“may affect” a listed species or critical habitat. 50 C.F.R. § 402.14(a). Conversely, an agency
is relieved of the obligation to consult on its actions only where the action will have “no
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effect” on listed species or designated critical habitat. “Effects determinations” are based on
the direct, indirect, and cumulative effects of the action when added to the environmental
baseline and other interrelated and interdependent activities. 50 C.F.R. § 402.02 (definition
of “effects of the action”).
21. “Cumulative effects” are “those effects of future State or private activities, not
involving Federal activities, that are reasonably certain to occur within the action area of
the Federal action subject to consultation.” 50 C.F.R. § 402.02.
22. “Action area” means “all areas to be affected directly or indirectly by the
Federal action and not merely the immediate area involved in the action.” 50 C.F.R.
§ 402.02. Delineating the appropriate action area is fundamental to conducting a lawful
assessment of a project’s impacts during consultation.
23. Section 7(d) of the ESA provides that, once a federal agency initiates
consultation on an action under the ESA, the agency “shall not make any irreversible or
irretrievable commitment of resources with respect to the agency action which has the
effect of foreclosing the formulation or implementation of any reasonable and prudent
alternative measures” which would avoid violating Section 7(a)(2). 16 U.S.C. § 1536(d).
This section’s purpose is to maintain the environmental status quo pending the completion
of consultation. Section 7(d) prohibitions remain in effect throughout the consultation
period and until the federal agency has satisfied its obligations under Section 7(a)(2) that
the action will not result in jeopardy to the species or adverse modification of its critical
habitat. 50 C.F.R. § 402.09.
24. To initiate consultation, the action agency (here, TxDOT) must assess the
impacts of the action on listed species and their habitat and provide all relevant
information about such impacts to the expert wildlife agency (here, the Service). 50 C.F.R.
§ 402.14(c)-(d). If the action agency determines that an action “may affect” but is “not likely
to adversely affect” a listed species or its critical habitat, it may undergo informal
consultation with the Service, defined as “an optional process that includes all discussions,
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correspondence, etc., between the Service and the Federal agency” that is “designed to
assist the Federal agency in determining whether formal consultation or a conference is
required.” 50 C.F.R. §§ 402.13(a), 402.14(b). If the Service concurs in writing with an action
agency’s “not likely to adversely affect” determination, the agency does not have to undergo
formal consultation. Id. §§ 402.13(a), 402.14(b).
25. If the Service does not concur, or if the action agency has determined that the
action is “likely to adversely affect” a listed species, the agencies must conduct a formal
consultation. Id. § 402.14(a).
26. Formal consultation concludes with the Service’s issuance of a biological
opinion in which it determines whether the agency action will jeopardize the survival and
recovery of listed species or will destroy or adversely modify the species’ critical habitat.
16 U.S.C. § 1536(b). In making this determination, both the Service and the action agency
must use the best available scientific information available. Id. § 1536(a)(2); 50 C.F.R. §
402.14(g)(8). The Service must review all relevant information and provide a detailed
evaluation of the action’s effects, including the cumulative effects of federal and nonfederal
activities in the area, on the listed species. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)-
(h). If the Service determines that the action is likely to jeopardize the species, the
biological opinion must specify “reasonable and prudent alternatives” that will avoid
jeopardy. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). The Service must also
formulate discretionary conservation recommendations to reduce or eliminate the action’s
impacts on listed species or critical habitat. 50 C.F.R. § 402.14(g)(6).
27. “Reasonable and prudent alternatives” are alternative actions that: (1) can be
implemented in a manner consistent with the action’s intended purpose; (2) can be
implemented consistent with the scope of the action agency’s legal authority; (3) are
economically and technologically feasible; and (4) would avoid the likelihood of
jeopardizing the continued existence of listed species or resulting in the destruction or
adverse modification of critical habitat. 50 C.F.R. § 402.02.

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28. Not only does a Section 7(a)(2) consultation assist the action agency in
discharging its duty to avoid jeopardy, but the biological opinion also affects the agency’s
obligation to avoid “take” of listed species. Under ESA Section 9, it is illegal for any
person—including governmental entities—to “take” any endangered species of fish or
wildlife. 16 U.S.C. § 1538(a)(1)(B). “Take” means “to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or attempt to engage in such conduct.” Id. § 1532(19).
The Service defines “harm” to include “significant habitat modification or degradation
where it actually kills or injures wildlife by significantly impairing essential behavioral
patterns, including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.
29. During formal consultation, the Service determines whether to authorize the
take of listed species through the issuance of an incidental take statement. An incidental
take statement may be issued only if the action can proceed without jeopardizing the
affected species. 16 U.S.C. § 1536(b)(4). An incidental take statement must specify: (1) the
impact of the incidental take on the listed species; (2) non-discretionary “reasonable and
prudent measures”; and (3) mandatory terms and conditions that the Service considers
necessary to minimize and reduce impacts to listed species and avoid jeopardy. Id.
30. An incidental take statement insulates the action agency from liability for
take of an endangered or threatened species, provided the agency complies with the
statement’s terms and conditions. 16 U.S.C. § 1536(o)(2).
31. Reinitiation of consultation is required under certain circumstances,
including “if new information reveals effects of the action that may affect listed species or
critical habitat in a manner or to an extent not previously considered, or if the action is
modified in a manner that causes an effect to the listed species or critical habitat that was
not considered” during consultation. 50 C.F.R. § 402.16.
32. The Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., provides for
judicial review of federal agencies’ and officials’ compliance with the ESA and with the
APA’s own procedural requirements. Under the APA, courts “shall hold unlawful and set
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aside” agency action, findings, or conclusions found to be “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).
FACTUAL BACKGROUND
a. The Setting
33. The Oak Hill “Y” traverses the recharge zone of the highly vulnerable Barton
Springs segment of the Edwards Aquifer, one of the most environmentally sensitive and
significant areas in the State of Texas. The endangered Barton Springs and Austin Blind
Salamanders depend on these underground waters.
34. The Edwards Aquifer is a karst limestone aquifer characterized by open
chambers such as caves, fractures, and other cavities that were formed either directly or
indirectly by the dissolution and fracturing of subsurface rock formations. These large
openings in the ground and streambeds allow water to enter the Edwards Aquifer without
filtration, where it can move relatively rapidly to springs. Groundwater in the aquifer
moves in a northeastern direction along the fault zone.
35. The Project crosses over and adds concrete to the watersheds for Williamson
Creek and Devil’s Pen Creek, a tributary of Slaughter Creek. Just east of the Project,
Williamson Creek flows into the Recharge Zone of the Edwards Aquifer. Studies have
demonstrated a known connection between Williamson Creek and Slaughter Creek to
Barton Springs. Devil’s Pen Creek is approximately four miles upstream of the confluence
with Slaughter Creek, and studies from the closest recharge feature along Slaughter creek
suggest fluids entering this feature discharge at Barton Springs in seven to eight days.
b. The Endangered Salamanders
36. The Austin Blind Salamander (Eurycea waterlooensis) and Barton Springs
Salamander (Eurycea sosorum) are federally listed endangered species that depend on the
Barton Springs portion of the Edwards Aquifer. The salamanders are endemic to a small
area of Travis and Hays Counties, Texas—meaning they are found nowhere else in the
world. Both are neotenic (do not transform into terrestrial form) and spend their entire
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lives in aquatic habitats such as spring outlets and subterranean water-filled caves and
cavities. The Austin Blind Salamander is thought to be more subterranean than the Barton
Springs Salamander, which is found at and near the spring openings . Similar to other cave-
adapted species, both salamanders are pale in color and have poor to non-existent vision.
37. The salamanders use interstitial spaces (empty voids between rocks) within
the springs or subsurface streambed, which provide foraging habitat and protection from
predators and drought conditions. They feed primarily on small aquatic invertebrates and
insect larvae.
38. The Barton Springs Salamander was listed as an endangered species under
the ESA in 1997. 62 Fed. Reg. 23,377 (Apr. 30, 1997). The Austin Blind Salamander was
listed as an endangered species in 2013. 78 Fed. Reg. 51,278 (Aug. 20, 2013). Critical
habitat has only been designated for the Austin Blind Salamander, concurrent with its
listing and encompassing the four Barton Springs spring outlets. 78 Fed. Reg. 51,328 (Aug.
20, 2013).
39. Both salamander species rely on groundwater with high oxygen levels that is
free of pollutants, as well as subsurface voids free of sediment. Sediment is of particular
concern because it can impede respiration by clogging salamanders’ gills. Sediment can
also settle in, fill up, and smother the subsurface spaces that salamanders use for shelter, to
find food, and to avoid predators.
40. Changes in water quality and flow patterns can render aquatic habitat
unsuitable for the salamanders. Both salamander species are threatened by reduced
habitat quality due to urbanization and increased impervious cover (paved surfaces). The
normal hydrologic regime is altered when natural vegetation and topsoil are cleared and
replaced with impervious cover. The Project would cause increased sediment loading
during the construction phase when soil is exposed, as well as increased erosion post-
construction, due to altered flow paths and more intense rainfall runoff from the newly
paved highway surfaces. Increased impervious cover and the resulting increased sediment
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loading, both during and after construction, degrades water quality, and may reduce the
quantity of recharge in the salamanders’ habitat. Because salamander prey species are also
highly sensitive to pollution, including sediment and petroleum hydrocarbons from
increased automobile traffic, contamination can also reduce the salamanders’ food supply,
indirectly impacting the salamanders’ ability to survive.
41. The primary threat identified in the final listing rules for both the Austin
Blind Salamander and Barton Springs Salamander is habitat modification from urban
expansion, including specifically from highway projects, in the form of degraded water
quality and quantity and the disturbance of spring sites. 78 Fed. Reg. at 51,297; 62 Fed. Reg.
at 23,384.
42. In addition to their eponymous habitat, Barton Springs Salamanders have
been found in several other spring outlets of the Edwards Aquifer, including Cold Springs
(in 2004) and Backdoor Springs (in 2017). Both of these springs are downgradient
(downstream, in underground flow paths) from the proposed Project. Dye trace studies
conducted by hydrogeologists at the Barton Springs Edwards Aquifer Conservation District
found that the Project largely lies in the Cold Springs groundwater basin, which is
significantly smaller than the larger groundwater basins that flow mainly into Barton
Springs.
43. The Project would reduce the quality of water recharging the Edwards
Aquifer by increasing impervious cover, increasing the probability of a hazardous material
spill, and increasing sediment and other pollution loading. This reduced water quality
would directly impact both surface and subsurface watersheds, salamander habitat at
spring outlets, and the salamanders living there. These reductions in water quality and
altered flows, and likely reduced quantity of recharge waters, would harm the Austin Blind
Salamander and Barton Springs Salamander.
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c. TxDOT’s Oak Hill Parkway Project

44. The project involves proposed widening improvements at and around the
intersection of US Highway (US) 290 and State Highway (SH) 71, locally known as “the Y,”
in southwestern Travis County, Texas. The project extends along US 290, from MoPac to
Farm-to-Market (FM) 1826 for a distance of approximately 6.16 miles with a transition to
the west. The project also includes the interchange on SH 71 from US 290 to Silvermine
Drive, a distance of approximately 1.31 miles, and includes two isolated detention ponds
located on either side of SH 71.
45. The proposed widening would make the Project footprint ten to twelve lanes
of at-grade and below grade pavement through the length of the project, in addition to the
ramps and overpasses. The number of highway mainlanes would vary from four (the
majority of the length) to two lanes at its western edged, flanked by two to three-lane
frontage roads running continuously alongside the mainlanes. The Project includes
elevated ramps (or “direct connectors”) at the intersection of US 290 and SH 71. New
roadway construction would begin on US 290 just east of Joe Tanner Lane, approximately
by the Boomerz Bar in the Oak City shopping center, where the 290 mainlanes would begin
to become elevated and pass over William Cannon Drive. The westbound mainlanes and
frontage road would be located just north of Williamson Creek. The mainlanes would be
depressed under SH 71 and direct connectors would be provided, connecting eastbound SH
71 with US 290, and westbound US 290 to SH 71. Grade-separated intersections would be
constructed at Convict Hill Road, RM 1826, Scenic Brook Drive, and Circle Drive (Southview
Road), with US 290 mainlanes running underneath the ground level cross streets. Along SH
71, the direct connector ramps would extend past Scenic Brook Drive, where the mainlanes
would then transition to a five-lane (three lanes northbound, two lanes southbound)
highway.
46. The Project is a federal project subject to the ESA’s consultation requirements.
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47. The stated purpose of the Project is “to improve mobility and operational
efficiency, facilitate long-term congestion management in the corridor by accommodating
the movement of people and goods for multiple modes of travel, and improve safety and
emergency response throughout the project area.” Record of Decision at 4.
48. Current design indicates that the Project would require the placement of up
to 723 columns, 167 columns of which would be located within the recharge zone, with
depths ranging from 19 to 40 feet below grade, directly into the Edwards limestone
overlaying the aquifer where fissures and fractures in the rock can quickly pull water down
into the Edwards Aquifer.
49. The Project would involve 2.65 miles of below-grade mainlanes, requiring
the excavation and removal of 1,968,000 cubic yards of soil and rock in the Project area,
and digging 25 feet into the cave-forming Edwards limestone that is exposed at the surface.
For comparison, the Houston Astrodome measures 1,600,000 cubic yards in total volume;
thus, the excavated earth from this project could fill up the Astrodome 1.3 times. 1
50. The Project would increase the amount of impervious cover by around 74
acres, thus increasing the total suspended solid pollutant loads generated by the project.
This increase in total suspended solids would be significant, from an estimated 87,000
pounds produced under existing conditions, to an estimated 162,163 pounds under
proposed conditions.
51. TxDOT claims that it will have engineered methods to reduce the load of total
suspended solids to levels below existing conditions, but nowhere gives specifics as to how
it will achieve this. As explained above, the endangered salamanders are sensitive to
impervious cover and suspended solids because they require clean, clear water from the
Edwards Aquifer.
1
See “The Measure of Things,” available at
http://www.bluebulbprojects.com/MeasureOfThings/results.php?amt=1968000&comp=volume&unit=cy&searchTer
m=3+cubic+yards,+a+measure+of+volume (last accessed July 26, 2019).
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52. The Oak Hill Parkway is just one of several highway projects being built or
planned in in the Barton Springs Edwards Aquifer watershed in southwest Travis County.
Less than three miles south and west of the Project are three additional new or expanded
roadways that lay entirely or nearly entirely within the recharge zone of the Barton Springs
portion of the Edwards Aquifer: the recently completed State Highway 45 toll road, the
under-construction MoPac Intersections project, and the proposed MoPac South Express
Lanes Project from Lady Bird Lake to Slaughter Lane. These three connected projects were
devised and are undergoing evaluation at the same time, will overlap in construction time,
are directed at altering operations of the same corridor, and overlap in the same
geographic locale, affecting the same unique, vulnerable environmental area. Yet
Defendants failed to consider the cumulative impacts the Project would have on the
salamanders when combined with these and other projects when carrying out the informal
consultation that is the subject of this action.
53. In addition to the ongoing and future highway projects, several private
developments and state construction activities are planned in areas close to the project
and/or in the recharge and contributing zones of the Barton Springs segment of the
Edwards Aquifer.
d. Consultation and the Environmental Review Process
54. On September 1, 2017, TxDOT submitted a letter to the Service initiating
informal consultation under the ESA Section 7(a)(2). TxDOT requested that the Service
concur with its determination that the Project “may affect, is not likely to adversely affect”
the endangered salamanders. TxDOT included a Biological Assessment (dated Sept. 2017)
proposed schematic designs, documents from the 2006 informal consultation for the
previously approved US 290/SH 71 Project (that was never built), a Biological Resources
Technical Report, a Preliminary Water Quality Analysis and Design Report (dated Mar.
2017), and a short memo describing best management practices to protect water quality
during construction and operation.

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55. The memo on best management practices does not actually state that TxDOT
will use any particular practice to reduce the project’s effects, nor does it evaluate the
efficacy of proposed measures. Instead, the memo uses hedging, non-committal language
identifying measures that “have been recommended” to be used “where practicable,”
“where feasible,” or “to the degree obtainable.” The memo does not provide any specifics as
to the performance level of these potential best management practices nor the degree of
meditation,
56. In reaching its “not likely to adversely affect determination,” TxDOT relied
upon the anticipated implementation of “Best Management Practices” associated with a
Water Pollution Abatement Plan (“Water Pollution Plan” or “WPAP”) required by the Texas
Commission on Environmental Quality’s (“TCEQ”) Edwards Aquifer rules (“TCEQ Rules”).
However, there is no TCEQ-approved water pollution plan to date. At the time of the
Service’s Concurrence in December 2017, as well as the issuance of the Record of Decision
and Final EIS in December 2018, TxDOT had yet to submit an application for a water
pollution plan to TCEQ.
57. Under TCEQ Rules, TxDOT is only required to remove 80 percent of the
increase in the total suspended solids load leaving the project area. Final EIS at 151. TxDOT
has repeatedly asserted its “commitment” to exceed these standards, but it has failed to
provide detailed plans to support its claims. Moreover, TCEQ Rules do not regulate any
other water quality pollutants that are associated with highway construction and road
runoff. Nor do the TCEQ Rules address land use, impervious cover limitations, many
sources of non-point source pollution, use of fertilizer or pesticides, or chemical spills that
may result from the Project. The TCEQ Rules were not designed, nor intended, to protect
listed salamanders, their prey species, or their habitats.
58. In 2005, TCEQ published a manual identifying “Optional Enhanced Measures”
to supplement the TCEQ Rules with recommended pollution control measures that can
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avoid potential harm to salamanders. The Service concurred that implementation of these
measures will protect endangered and candidate species from impacts due to water quality
degradation and reaffirmed this Concurrence in 2007 when the Optional Enhanced
Measures were revised. The optional measures, developed collaboratively by the Service
and TCEQ, are expected to result in “no take” of Barton Springs Salamanders and four other
endangered Edwards Aquifer species. The development of this separate set of advanced
measures reinforces the point that the Edwards Rules alone are not sufficient to protect
either the Barton Springs or Austin blind Salamanders at risk from this Project. TxDOT
does not plan to implement these enhanced measures.
59. In its 2013 listing for the Austin Blind Salamander, the Service specifically
identified the TCEQ Rules as inadequate to prevent past and ongoing impacts to the Austin
Blind Salamander and its habitat from water quality degradation and reduction in water
quality. The Service further found that the TCEQ Rules are unlikely to prevent further
impacts to the species in the future. 78 Fed. Reg. 51,278, 51,315 (Aug. 20, 2013).
60. In its EIS, TxDOT explains roadway excavation could disrupt voids in the
limestone, where endangered salamanders live. If these voids are encountered, the water
quality could be impacted through introduction of silt, fuels, lubricants, and other
pollutants to the subsurface, and groundwater flow may be disrupted. Rather than analyze
how to prevent and mitigate the possible impacts of disrupting such key habitat of
endangered salamanders, TxDOT delays creation of a mitigation plan for the impacts until
after such a void is encountered.
61. Despite its reliance on future, unspecific measures to protect water quality,
TxDOT’s track record is one of failing to operate and maintain water quality controls on
roadways over the Edwards Aquifer.
62. On December 20, 2017, the Service issued a letter concurring with TxDOT’s
“may affect, not likely to adversely affect” determination (“December 2017 Concurrence” or
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“Concurrence Letter,” attached as Exhibit A). The concurrence letter heavily relied on
TxDOT’s statement that proposed measures would result in a net reduction of total
suspended solids leaving the project area as compared to existing conditions.
63. The Service’s Concurrence Letter failed to identify an “action area” for the
Project, thus obscuring what and where effects of the Project were analyzed in relation to
the endangered salamanders.
64. In the Concurrence Letter, the Service ignored its own conclusions from the
Austin Blind Salamander listing and the peer-reviewed science referenced therein.
Specifically, the listing concluded that highways and impervious cover, and the resulting
sedimentation, were a major factor in the species’ endangered status. Nowhere do
Defendants explain how a giant project like the Oak Hill Parkway—a project that involves
paving over dozens of acres and excavating huge amounts of earth in the recharge and
contributing zone—can be found “not likely to adversely affect” the salamanders.
Defendants disregard the Service’s previous conclusions and well-established scientific
literature in favor of one unpublished, non-peer reviewed study without explaining how
the studies previously endorsed by the Service no longer apply.
65. The Service’s December 2017 consultation letter acknowledges that
excavation will occur, but it does not give any indication as to the scope of this excavation
and thus fails to consider the impacts of such a large amount of excavation on the
salamander.
66. On May 4, 2018, the Environmental Protection Agency published a Notice of
Availability of Draft Environmental Impact Statements, including the Oakhill Parkway draft
EIS, establishing a public comment deadline of June 18, 2018. 83 Fed. Reg. 19,758. In an
email dated May 31, 2018 sent to a public list-serve, TxDOT extended the comment period
to June 29, 2018.
17
67. A Public Hearing was held on the project at May 24, 2018. A representative
from SOS gave oral comment at the hearing.
68. On June 29, 2018, SOS submitted written comments on the Draft EIS.
69. On December 21, 2018, TxDOT finalized the EIS and issued a Record of
Decision under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-51.
70. On February 4, 2019, the U.S. Department of Transportation published a
Notice of Final Federal Agency Actions on Proposed Highway Projects in Texas regarding
several projects, including the Oak Hill Parkway. 84 Fed. Reg. 1,528, 1,530. That notice
provided that a claim seeking judicial review of the federal agency actions on the Project,
including claims under the ESA, would be barred unless the claim is filed “on or [sic] July
11, 2019.” Id. at 1,528. However, because federal highway law requires that such claims be
brought within 150 days of the notice, this notice erroneously provided an extra week to
file a claim. See 23 U.S.C. § 139(l)(1).
71. On March 1, 2019, the U.S. Department of Transportation published another
Notice of Final Federal Agency Actions on Proposed Highway Projects in Texas, regarding
several projects, including the Oak Hill Parkway. 84 Fed. Reg. 7,162-63. This notice
provides that a claim seeking judicial review of the federal agency actions on the Project,
including claims under the ESA, will be barred unless the claim is filed on or before July 29,
2019. Id. at 7,162.
72. On May 30, 2019, SOS sent TxDOT and the Service a 60-day Notice of Intent
to Sue, which detailed the failures of TxDOT and the Service to support a “not likely to
adversely affect” determination for the Austin Blind Salamander and Barton Springs
Salamander (Attached as Exhibit B).
73. On July 3, 2019, Defendant TxDOT sent SOS a letter responding to SOS’s
Notice of Intent to Sue, disagreeing with each of SOS’s points and standing by the “not likely
to adversely affect” determination. TxDOT referenced a “44-page Biological Resources
Technical Report Addendum” dated May 2019 and described it as “publicly available,” but
18
did not provide a copy of the report. After submitting a request under the Texas Public
Information Act, SOS received this report from TxDOT on July 29, 2019, the deadline to file
suit on this Project.
e. New Information on Effects Arising After the December 2017 Consultation Letter
i. New Salamander Occurrences at Backdoor Springs
74. In March 2018, the City of Austin published a report documenting that
Barton Springs Salamanders inhabit Backdoor Springs. Backdoor Springs is within the
Recharge Zone located northeast of and thus downgradient from the Project site.
75. Backdoor Springs discharges into Barton Creek about six miles upstream of
Barton Springs pool, in the Edwards Aquifer Recharge Zone within the City of Austin’s
Barton Creek greenbelt parkland. These springs constantly flow at a rate of about 10
gallons per minute (0.02 cubic feet per second), except during periods of extended drought,
which indicates a diffuse flow source—that is, groundwater flows to the springs via a vast
network of tiny fractures, rather than one large direct conduit.
76. Other minor seeps and springs discharge within a few hundred feet upstream
of Backdoor Springs. Combined flow from the seeps and springs near Backdoor Springs
sustains a large pool of water in Barton Creek even during drought periods, providing
suitable salamander habitat.
77. The Project’s Final EIS states that Backdoor Springs is located approximately
1.68 miles north of the MoPac/US 290/SH 71 interchange. Final EIS at 105. In this same
paragraph, TxDOT acknowledges the 2018 report that Barton Springs Salamanders live in
Backdoor Springs.
78. According to the Final EIS, “no recent flow-path modeling or groundwater
basin delineation maps for this spring are available; however, in 1997 the [City of Austin]
estimated that the Backdoor Spring groundwater basin roughly included all of the area
between the spring on Barton Creek and US 290, which is approximately two square miles
in size (COA, 1997).”

19
79. In a short email dated December 10, 2018, the Service stated that “[S]ince the
proposed project has no net increase in TSS and the new salamander site is approximately
7 miles in distance away, I agree that our concurrence letter remains unchanged.”
80. On December 11, 2018, TxDOT sent another email to the Service, correcting
its earlier statement and clarifying that the distance from the project to Backdoor Springs is
approximately three miles, not seven miles as originally stated by TxDOT. TxDOT
acknowledged that “while a small portion of the project area may occur upgradient from
the subsurface drainage to Back Door Springs,” it stressed that the net reduction of total
suspended solids leaving the site would continue to support a “not likely to adversely
affect” determination. Again, the Service summarily concluded in a short email response
containing no explanation, that the new information did not affect the December 2017
concurrence.
ii. TxDOT’s Erroneous Total Suspended Solid Load Calculations
81. During the original consultation, on November 29, 2017, TxDOT had sent the
Service an email stating that:
The total suspended solids load being discharged from the project area in
existing conditions is 979 pounds, and the load that is proposed to be
discharged after the Project is constructed is negative 45,674 pounds. There
is a net reduction in the amount of TSS leaving the project area under the
proposed condition.
82. The Service’s December 20, 2017 Concurrence letter heavily relied on
TxDOT’s assertion that the Project would have no net reduction in total suspended solids.
83. Nearly one year after presenting its original figures on total suspended
solids, TxDOT informed the Service in a November 19, 2018 email that it had erred in its
calculations. The corrected calculations showed that the Project would not result in a net
reduction of total suspended solids, but rather a net addition of total suspended solids from
the Project. The original calculations included a coefficient in the formula that should not
have been there.
20
84. On November 29, 2018, TxDOT sent the Service an email with more
information about total suspended solids, including an attachment comparing estimated
TSS concentrations in Project runoff with existing stormwater concentrations in area
creeks. This document incorrectly states that “Williamson Creek flows into Barton Creek,”
and does not include any information about Devil’s Pen Creek or Slaughter Creek, which
TxDOT elsewhere acknowledges will be affected by the Project.
85. TxDOT sent the Service a letter dated December 4, 2018 documenting the
correspondence regarding the erroneous total suspended solids and requesting that the
Service maintain its original conclusions in the December 2017 concurrence. TxDOT
explained that although it had not determined precisely how it would achieve this, it was
committed to a “final design” of the Project “that will result in a net decrease in [total
suspended solids’ loading compared with the existing condition.”
86. The Service responded on December 7, 2018, stating that “If the proposed
project does not result in a net increase in TSS loading as was described in the original BA,
the Dec. 20, 2017 concurrence letter still applies.”
87. In so stating, the Service has shirked its duty under the ESA to insure that the
Project is not likely to jeopardize the continued existence of the salamanders, essentially
throwing up its hands and saying, “If TxDOT says it will protect the salamander, then we
concur that the salamander is protected.”
CLAIMS FOR RELIEF
First Claim: In Concluding that the Project is “Not Likely to Adversely Affect” the
Endangered Salamanders, Defendants Failed to Use the Best Scientific Data
Available.
88. SOS incorporates by reference all preceding paragraphs.
89. In concluding that the Project “may affect, is not likely to adversely affect” the
Austin Blind Salamander and Barton Springs Salamander, Defendants failed to rationally
consider and explain a number of relevant factors, including but not limited to: (1) the
21
potential impacts of void encounters on the endangered salamanders; (2) the broad range
of likely pollutants other than total suspended solids; (3) the increased probability of
occurrence of hazardous material spills; (4) the erosion and sedimentation impacts from
“best management practices” that fail due to extreme weather, improper installation,
and/or inadequate maintenance; and (5) the highly probable increase in loadings to the
Edwards Aquifer during construction within the channel of Williamson Creek, a major
recharging creek, that no amount of erosion and sedimentation controls can adequately
prevent, even in the absence of failure.
90. During the consultation, Defendants failed to use the best available scientific
evidence regarding the effectiveness of sediment controls and the impacts of highways on
the endangered salamanders, in violation of their duties under the ESA. 16 U.S.C. §
1536(a)(2).
91. Because the Service concurred with TxDOT’s “not likely to adversely affect”
determination for the Austin Blind Salamander and Barton Springs Salamander, no
biological opinion was prepared for the Project. Therefore, no incidental take statement
was prepared that would have specified mandatory terms and conditions to minimize
impacts to these species, including monitoring and reporting requirements. 16 U.S.C.
§ 1536(b); 50 C.F.R. § 402.14.
92. The Service’s concurrence that a proposed action is not likely to adversely
affect listed species, or is not likely to destroy or adversely modify critical habitat, is final
agency action reviewable under Section 706(2)(A) of the APA.
93. TxDOT’s determination and the Service’s letter of concurrence that the
Project is not likely to adversely affect the Austin Blind Salamander, the Barton Springs
Salamander, or the Austin Blind Salamander’s critical habitat are arbitrary, capricious, an
abuse of discretion, and not in accordance with Section 7 of the ESA. See 5 U.S.C. § 706(2).
TxDOT’s determination and the Service’s letter of concurrence should be held unlawful and
set aside. Id.

22
Second Claim: Defendants Failed to Consider All, Direct, Indirect, and Cumulative
Effects of the Project on the Endangered Salamanders.
95. The Project is likely to harm the endangered Austin Blind Salamander and
Barton Springs Salamander through negative impacts to water quality and quantity and
altered flow regimes in the Edwards Aquifer. These harms, when taken together with
baseline conditions and cumulative impacts of other ongoing and foreseeable activities, are
likely to jeopardize the continued existence of the Austin Blind Salamander and the Barton
Springs Salamander, and to adversely modify the Austin Blind Salamander’s critical habitat.
96. TxDOT and the Service failed to analyze the cumulative effects of the Project
on the endangered salamanders in conjunction with effects of future State and private
activities that are reasonably certain to occur within the action area, in violation of the ESA.
97. TxDOT and the Service are therefore violating, and will continue to violate,
Section 7(a)(2) of the ESA and its implementing regulations by failing to analyze the direct,
indirect, and cumulative effects of this Project and thus failing to ensure that the Project
will not jeopardize the continued existence of the Austin Blind Salamander and Barton
Springs Salamander. 16 U.S.C. § 1536(a)(2); 50 C.F.R. Part 402.
98. The APA provides the standard of review for this claim. 5 U.S.C. § 706(2)(A).
Defendants’ failure to analyze the cumulative effects of the Project is arbitrary, capricious,
an abuse of discretion, and otherwise not in accordance with law. Id.
Third Claim: TxDOT Failed to Ensure Against Jeopardy Through Reliance on the
Service’s Arbitrary and Capricious Concurrence.
100. TxDOT did not properly consider the Project’s impacts on the Austin Blind
Salamander or the Barton Springs Salamander in their “not likely to adversely affectˮ
determination, and TxDOT has not adequately mitigated the Project’s harmful impacts.
23
101. Rather than take measures to avoid jeopardy of these endangered species
through formal consultation with the Service, TxDOT unreasonably relied on the Service’s
unlawful concurrence.
102. In relying on the Service’s unlawful concurrence, TxDOT failed to use the best
available scientific evidence regarding effectiveness of sediment controls and impacts of
highways on the endangered salamanders, in violation of its duties under the ESA. 16 U.S.C.
§ 1536(a)(2).
103. TxDOT is therefore violating, and will continue to violate, Section 7(a)(2) of
the ESA and its implementing regulations by failing to ensure that the Project will not
jeopardize the continued existence of the Austin Blind Salamander and Barton Springs
Salamander. 16 U.S.C. § 1536(a)(2); 50 C.F.R. Part 402.
TxDOT’s failure to ensure against jeopardy is arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. Id.

Fourth Claim: Defendants Violated the ESA by Failing to Reinitiate Consultation in
Light of New Information Regarding the Project’s Impacts.
106. Events triggering the duty to reinitiate consultation have occurred since the
Service’s December 2017 concurrence. These events include TxDOT’s recognition of its
egregious errors in calculating the total suspended solids resulting from the Project, as well
as new information regarding recently discovered occurrences of the Barton Springs
Salamander in spring sites close to the Project.
107. Both the Service and TxDOT, as the action agency, have an ongoing duty to
reinitiate consultation if events triggering the need for consultation occur after the
consultation has concluded.
108. By allowing and authorizing the Project to proceed, prior to the re-initiation
and completion of an adequate consultation with the Service, TxDOT is failing to protect the
24
Austin Blind and Barton Springs Salamanders from jeopardy, in violation of Section 7(a)(2)
of the Act. 16 U.S.C. § 1536(a)(2).
109. Subsequent to SOS sending the Notice of Intent to Sue, SOS learned that
additional changes were made to the Project, including increased bridge lengths, to
accommodate the new rainfall and floodplain data encompassed in a federal rainfall study
known as Atlas-14. To the extent that Atlas-14 rainfall data or other information reveals
effects of the Project that may affect the endangered salamanders to an extent not
previously considered, or leads to project changes that cause effects to the species not
previously considered, Defendants are in violation of the ESA by not reinitiating
consultation.
110. Defendants are therefore violating, and will continue to violate, Section
7(a)(2) of the ESA and its implementing regulations by failing to reinitiate consultation in
light of new information showing the Project may affect the endangered salamanders and
critical habitat in a manner or to an extent not previously considered. 16 U.S.C.
§ 1536(a)(2); 50 C.F.R. § 402.16.
Defendants’ failure to reinitiate consultation is arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. Id.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court:
1. Declare that Defendant the Service violated the ESA and APA by arbitrarily
and capriciously concurring with TxDOT’s “not likely to adversely affectˮ determination for
the Austin Blind Salamander and the Barton Springs Salamander, and critical habitat for
the Austin Blind Salamander;
2. Declare that Defendant TxDOT has violated and is violating Section 7(a)(2) of
the ESA, 16 U.S.C. § 1536(a)(2), and its implementing regulations, 50 C.F.R. Part 402, by
25
failing to ensure that the Project does not jeopardize the continued existence of the Austin
Blind Salamander or the Barton Springs Salamander;
3. Order Defendants to comply with the ESA and APA;
4. Set aside the Service’s December 2017 ESA concurrence for the Project.
5. Enjoin Defendants TxDOT and their agents from proceeding with
implementing the Project unless and until the violations of federal law set forth herein have
been corrected to the satisfaction of this Court;
6. Award Plaintiff its reasonable fees, costs, and expenses associated with this
litigation under 16 U.S.C. § 1540(g)(4) and 28 U.S.C. § 2412; and
7. Grant Plaintiff such other and further relief as the Court deems just and
equitable.
Respectfully submitted and dated this 29th day of July, 2019, by:
Kelly D. Davis
W.D. Tex. Bar No. 24069578
William G. Bunch
W.D. Tex. Bar No. 03342520
Save Our Springs Alliance

4701 Westgate Blvd, Ste. D
Austin, TX 78745
Tel: (512) 477-2320
Fax: (512) 477-6410
kelly@sosalliance.org
bill@sosalliance.org
Attorneys for Plaintiff Save Our Springs Alliance
26
Case 1:19-cv-00762 Document 1-1 Filed 07/29/19 Page 1 of 7
United States Department of the Interior

FISH AND WILDLIFE SERVICE
10711 Burnet Road, Suite 200
Austin, Texas 78758
512 490-0057
EXHIBIT A FAX 490-0974

Case No. 19-CV-762
DEC 2 0 2017
Jodi Bechtel, Natural Resources Management Section Director
Texas Department of Transportation
Environmental Affairs Division
125 East 11th Street
Austin, Texas 78701-2483
Dear Ms. Bechtel,
This responds to your September 1, 2017, request, where Texas Department of Transportation
(TxDOT) proposed to initiate informal consultation to construct and make improvements to U.S.
highway 290 (US 290)/State highway 71 (SH 71) West through Oak Hill, Travis County, Texas,
(proposed action). The proposed action would ease congestion and improve traffic flow
associated with rapid and expansive population growth in Oak Hill area and Travis County in
general. A Biological Assessment (BA) was included with your request for informal
consultation that describes the proposed action in detail. The proposed action would begin just
east of Joe Tanner Lane where the existing main lanes transition to an urban highway and would
continue west to approximately Circle Drive on US 290 and to approximately Silvermine Drive
on SH 71. Main lanes would vary from four lanes in each direction near William Cannon Drive
to a two-lane transition near the western project extent. Grade-separated intersections would be
constructed at several locations and the main lanes would generally be 12 feet wide with IO-foot
shoulders. The proposed action would include shared-use paths, water quality treatment and
detention ponds, and would include the acquisition of a new right-of-way.
TxDOT has reviewed the available scientific information for the project area, including on-site
surveys and habitat assessments for the federally-listed species and has determined the project
may affect, but is not likely to adversely affect the Barton Springs salamander (Eurycea
sosorum) (BSS) and Austin blind salamander (Eurycea waterlooensis) (ABS). Designated
critical habitat for the ABS does not occur within the proposed project area and is approximately
four miles or further distance away. No critical habitat has been designated for the BSS.
TxDOT requests the Service concur with the effect determinations for these listed species and
critical habitat pursuant to the Act.
The TxDOT Biological Technical Report for this project (dated August 18, 2017, Attachment C)
~~~~--J·R&1ucl~s-a-ELlB&uss-ien-ef-tfie-±±--fecler-aHy-ti~tecl-s-peeies-in-~r~vi-s-8etlfl:ty-inelttclin~~he-eandidate~~~~~~
species Bracted Twistflower (Streptanthus bracteatus ). Given the uncertainty associated with the
presence or absence of Bracted Twistflower in the inaccessible parcels along the project corridor,
there is a potential that the proposed action may impact this species. Candidate species such as
the Bracted Twistflower receive no statutory protection under the Endangered Species Act (Act).
However, if this species should become federally-listed during the environmental review or
EXHIBIT A
construction phase of the Oak Hill Parkway project, additional coordination and consultation
with the U.S. Fish and Wildlife Service (Service) will need to occur.
Section 7 of the Act requires that all Federal agencies consult with the Service to ensure that the
actions authorized, funded, or carried out by such agencies do not jeopardize the continued
existence of any threatened or endangered species or adversely modify or destroy designated
critical habitat of such species. In a Memorandum of Understanding dated December 16, 2014,
(23 U.S.C. 327) the Federal Highway Administration (FHWA) assigned responsibility for
compliance with the National Environmental Policy Act (NEPA) and all federal resource agency
consultations, including section 7 of the Act, to TxDOT. As such, TxDOT is the Federal Agency
associated with this project.
The proposed construction of the Oak Hill Parkway project would include actions and equipment
commonly needed to widen an existing roadway. Typical activities include surface milling,
grading, and excavations. Excavation equipment such as trackhoes and trenchers are typically
used in smaller areas as opposed to milling and grading equipment; however, the depths
impacted may be greater. Most excavation and trench work on roadway projects is for the
placement of stormwater conveyances and water quality facilities, but excavation for the main
lanes at the US 290/SH 71 intersection would be required. The proposed action would include
the construction of bridges, overpasses, and direct connectors at multiple locations. Drilling for
the installation of support piers for these elevated structures involves drilling larger shafts
ranging from 3 to 15 feet in diameter with depths typically between 19 and 40 feet. Preliminary
design indicates that approximately 723 columns would be required to construct the proposed
action. The main lanes would be elevated over William Cannon Drive and frontage roads would
be at grade; both the westbound main lanes and frontage road would be located north of
Williamson Creek. The main lanes would either be depressed under SH 71 or elevated over this
intersection, and direct connectors would be provided connecting eastbound SH 71 with US 290
and westbound US 290 to SH 71. Main lanes would vary from four lanes in each direction near
William Cannon Drive to a two-lane transition near the western project extent. Grade-separated
intersections would be constructed at Convict Hill Road, FM 1826, Scenic Brook Drive, and
Circle Drive (S. View Road). Main lanes would generally be 12 feet wide with 10-foot
shoulders. Texas turnarounds, which allow vehicles traveling on a frontage road to U-tum onto
the opposite frontage road, would be constructed on US 290 frontage roads at Scenic Brook
Drive, FM 1826, Convict Hill Drive, and William Cannon Drive. Along SH 71, the direct
connector ramps would extend past Scenic Brook Drive where the main lanes would transition to
a five-lane (three lanes northbound, two lanes southbound) rural highway with Texas
turnarounds. Bicycle and pedestrian facilities would be provided via a shared-use path along the
entire project length. The proposed action would require the acquisition of approximately 75
acres of new right-of-way, which includes the area needed for the two stormwater detention
ponds. Approximately 4.1 acres of temporary construction easements and 0.21 acres of shared-
-----.u=se-path rue currently proposed~ll not be permanently acquired as 'fxDPQl-9T~-----
right-of-way. The proposed action is anticipated to add between 73 to 74 acres of impervious
cover to the project area.
The proposed action would require replacement of the existing concrete bridges at Old Bee Cave
Road and William Cannon Drive, and the US 290/SH 71 bridge over Williamson Creek located
between McCarty Lane and Patton Ranch Road. It is anticipated that approximately 563, 1,597,
and 996 cubic yards (CY) of concrete would be removed from the 25-year floodplain at these
EXHIBIT A
locations. The new crossings would include construction of bridges utilizing up to 93 concrete
columns, each 4-foot in diameter, for a total of approximately 108 CY of fill across these
locations. The net result of the bridge removal/reconstruction would be an approximately 2,934
CY reduction of concrete within the 25-year floodplain of Williamson Creek.
There are known locations of BSS and ABS downgradient from the area at the Barton Springs
complex. Dye trace studies have demonstrated a known connection between Williamson Creek
and Slaughter Creek to Barton Springs (Hauwert et al. 2004; Hauwert 2012); however, there are
no significant recharge features (such as caves or sinks) located within or adjacent to the project
area. The Barton Springs complex is located approximately four miles northeast of the proposed
construction area. Although there is a possibility that stormwater carrying sediment and other
contaminants could enter the aquifer and travel through groundwater conduits to occupied
salamander habitat, the likelihood that contaminants would cause a detectable effect on
individual salamanders decreases with increasing distance from the project area and due to
dilution in the aquifer itself. Dye trace studies have suggested that the closest recharge features
associated with the project area are located in the general vicinity of Williamson Creek at the US
290/SH71 crossing, and would take between 5 and 8 days to discharge at Cold Springs (Hauwert
et al. 2004; Hauwert 2015). Devil's Pen Creek is approximately four miles upstream of the
confluence with Slaughter Creek, and dye trace studies from the closest recharge features along
Slaughter Creek suggested discharge at Barton Springs is 7-8 days (Hauwert et al. 2004;
Hauwert 2015). Stormwater leaving the project area and entering the aquifer would be subject to
mixing and dilution from both the existing groundwater and surface water recharging from other
features, thereby reducing the magnitude of the effect attributable to the project.
The project area is located in southwest Austin along the eastern edge of the Edwards Plateau
Ecoregion where topography is generally hilly with some limestone outcrops. Land use adjacent
to SH 71 primarily includes commercial businesses, multi-family residential complexes, single
family residences, and community facilities such as places of worship, educational facilities, and
medical facilities. There are several parcels adjacent to the US 290 and SH 71 that are vacant,
vegetated lots that contain disturbed oak-juniper and native-invasive woodland vegetation.
Undeveloped land occurs sporadically throughout the project area and includes riparian channels
around creek crossings, limestone outcrops, and wooded lots. The proposed upstream
stormwater detention pond locations are a mixture of native and introduced vegetation
surrounded by residential and commercial land. The proposed upstream pond site located west
of SH 71 is currently being used for livestock grazing, and the proposed upstream pond site
located adjacent to Old Bee Caves Road is currently undeveloped, vegetated land. The existing
right-of-way is regularly maintained, and grasses and forbs dominate most areas though some
woody vegetation has been preserved
The watersheds for Slaughter Creek, Williamson Creek, and Lake Austin-Town Lake, which
----~i-11G-l-Ytl©-s-gaFte-11-GFeek--,---aFe-i-Re-l-uEl.eEk-n-t-fle--j3fejee-t-ar-ea;--W-i-t-h-i-fl-t-he-17rejeet-ar-ea,---B~-90-i~-------
crossed by Wheeler Branch, Williamson Creek, Devil's Pen Creek, and five unnamed tributaries
to Williamson Creek. SH 71 crosses Scenic Brook Tributary, one unnamed tributary to
Williamson Creek, and the main branch of Williamson Creek (Figures 2a and 2b). Williamson
Creek is listed by the U.S. Geologic Survey (USGS) and the National Hydrography Dataset as a
perennial stream but was dry within the project area during several of the field visits and is
assumed to be intermittent. All tributaries in the project area are listed by the USGS as
intermittent or ephemeral streams (USGS 2017). The project area intersects the Federal
EXHIBIT A
Emergency Management Agency (FEMA) designated 100-year floodplains associated with

Devil's Pen Creek and several locations of Williamson Creek and its tributaries. No tributaries
or floodplains associated with Barton Creek are crossed by the project area.
The project area includes portions of the Contributing and Recharge Zones over the Edwards
Aquifer. Of the total project area, approximately 64 percent lies within the Contributing Zone
and 36 percent is located in the Recharge Zone. Studies have shown that streams originating in
the Contributing Zone provide the majority of recharge to the Barton Springs Segment of the
aquifer through stream losses in the Recharge Zone (Slade et al. 1986; Wong et al. 2014). The
movement of groundwater in the aquifer is from the higher elevation (southwestern areas)
toward major discharge areas in the northeast, with flow controlled primarily by barrier faults
that disrupt the continuity of the permeable Edwards strata (Eckhardt 2016). The Barton Springs
Segment primarily discharges at Barton Springs, Cold Springs, and (to a lesser degree) small
springs and seeps along Barton Creek and the Colorado River (Small et al. 1996; Hauwert et al.
2004; Slade 2014). A portion of the project area is located within the Cold Springs groundwater
basin (Illustration 1). Water levels of the Edwards Aquifer and associated flows of Barton
Springs and other natural discharge points are affected by the rate of water entering the aquifer
(recharge through caves and sinks) and the rate of water exiting the aquifer (discharge through
springs or seeps). Approximately 85 percent of recharge to the Edwards Aquifer comes from six
streams located within the Recharge Zone (Slade et al. 1986). Of these, Williamson Creek, its
tributaries, and Devil's Pen Creek (a tributary to Slaughter Creek) occur within the Oak Hill
Parkway project area. Recharge from the eastern portions of the project area have been
associated with the Cold Springs flow route through the aquifer, which has been shown to supply
water to Cold Springs and other unidentified springs on the Colorado River (Hauwert et al.
2004). Flow paths from downstream of the project area are located within the Sunset Valley
groundwater basin and have mapped flow paths that lead to the Barton Springs complex
(Hauwert et al. 2004).
A Geologic Assessment was conducted in 2009 and updated in 2016 for the portion of the
project area located over the Edwards Aquifer Recharge Zone (Rahe 2009; HDR 2016). In all,
eight potential recharge features were identified in 2009, but only six features were found during
the updated survey in 2016. All features were located in the general vicinity of Williamson
Creek at the US 290/SH71 crossing. The eight features included one fault, one closed
depression, two zones displaying fractures, three solution cavities, and one feature noted as a
natural bedrock feature. Each was characterized using the methodology presented in the
guidelines for geologic assessments on the Edwards Aquifer Recharge Zone (TCEQ 2004). All
six of the features described in 2016 were evaluated as sensitive, (i.e., they have the potential to
provide aquifer recharge pathways). No caves were identified within the project area during the
geologic assessment.
'Because groundwater moves through highly penneable fractures and voids (features), the aquifer
has little ability to filter potential contaminants. This characteristic makes the Edwards Aquifer's
water quality highly dependent on the quality of surface water flowing over the Recharge Zone
and the aquifer species particularly susceptible to upstream contamination (Mahler and Massei
2007).
TxDOT recognizes the particular sensitivity of the Edwards Aquifer and the habitat it provides to
the ABS and BSS in both the subterranean and downstream spring environments. Due to the
proposed project's location over the Recharge Zone, TxDOT proposed the following avoidance
EXHIBIT A
5
and minimize measures to address direct and indirect effects to the BSS and ABS resulting from
the activities as part of this consultation:
• Best Management Practices (BMPs) to protect to protect water quality during both the
construction and operation phases of the roadway as included in the WP AP and the
Stormwater Pollution Prevention Plan would be utilized as described in Attachment F of
the BA.
• Use of permanent BMPs such as Vegetated Filter Strips, a hazardous materials trap at
Williamson Creek, bioretention ponds, extended detention ponds, and sand filter ponds
(as described in Attachment E of the BA) would be utilized throughout the project area.
• Specific void mitigation measures as described in Attachment F of the BA would be
followed for any unknown void encounters to protect the Edwards Aquifer from TSS
during construction.
• Buffers will be established to prevent impacts to the known recharge features in
Williamson Creek during the construction phase of the project.
We acknowledge the proximity to the proposed action of nearby karst features the relatively
rapid movement of groundwater from the project area to Barton Springs, and the connection of
these karst features through a portion of the Edwards Aquifer to populations of Austin blind
salamanders and Barton Springs salamanders at Barton Springs. The BMPs implemented by the
proposed action will stop, or significantly decrease, the flow of sediment and pollutants into
nearby karst features and into groundwater that moves to Barton Springs. Therefore, we have
determined that the BMPs and the reasonable compounded effectiveness when these are layered
(or stacked) with other BMPs, even where absolute effectiveness data is lacking, will protect
potentially affected species from harmful effects caused by the proposed action. We agree that
the effects of the proposed action on these species are insignificant and will not result in adverse
effects to the ABS or BSS or result in destruction or adverse modification of designated critical
habitat of the ABS in the action area. With respect to critical habitat, TxDOT' s proposed BMPs
ensures that the proposed action will have no material effects on the Primary Constituent
Elements of critical habitat identified in our designation and, therefore, the proposed action will
not destroy or adversely modify critical habitat. BMPs such as avoidance flagging or fencing,
rock filter darns, and sediment control fencing may be included to prevent impacts to these
features.
Potential direct effects to individuals and to the aquifer could also result from project activities
directly impacting the aquifer. This type of impact is most likely to occur during activities
associated with the construction of bridges and overpasses, particularly those that require
subsurface activities such as pier construction. Preliminary design indicates that the proposed
project would require the placement of up to 723 columns, 167 of which would be located within
the Recharge Zone. Columns would typically reach depths between 19 and 40 feet, which would
-------ne-shaHowerthan-the--watedevetsincrlHmtune---ufthe-re-corded-weltsiTearthe project area. Tn~e-----~
one well, last date of sampling of 194 7, had a recorded depth of 35 feet (believe to be perched
water, TxDOT pers. comm.), whereas all other wells within 500 feet of the project area have
reported depths of greater than 130 feet (TWDB 2017). Since the columns will not reach the
depths of the aquifer, this ensures that salamanders will not be directly impacted as a result of
excavation should they be located in this portion of the aquifer.
EXHIBIT A
Indirect effects to the quality and quantity of groundwater and surface water may affect the
habitat of listed species. Indirect effects to water quality could result from polluted stormwater
runoff from the project area during both the construction and operation phases ifBMP failure
were to occur. Construction phase runoff could be polluted by sediment that erodes from
disturbed areas or from the introduction of materials such as petroleum products or solid wastes
that could be introduced into surface drainages or to aquifer recharge pathways. Additionally,
subsurface activities, including boring operations, could indirectly affect aquifer water quality
through the loss of drill lubricants or materials used for the construction of piers. These lost
materials could lead to increased turbidity or increased concentrations of toxic substances in the
aquifer, which could have adverse effects on listed species. Operation-phase runoff could be
polluted through the introduction of vehicle-derived pollutants (e.g., fuel, lubricants, heavy
metals, hazardous loads), substances released through accidental spills, or from materials that
leach from the roadway themselves. Water quantity could be affected by the increased
impervious cover that would result from the expansion of the roadway or from the inadvertent
plugging of subsurface pathways that provide aquifer recharge.
The proposed project includes two upstream detention ponds (with a total area of 18.30 acres)
and up to 17 water quality ponds to mitigate for the increased impervious cover throughout the
project area. These permanent ponds would be designed to improve the quality of stormwater
runoff as well as the flow characteristics (e.g., rate, velocity) of discharged stormwater, which
would decrease flood potential and reduce channel scouring downstream. It is anticipated that
due to the upstream detention ponds and the US 290 bridge improvements at Old Bee Cave
Road, William Cannon Drive, and US 290, there would be a reduction in 10-year flood levels
(0.5 feet) in Williamson Creek that would slightly reduce overland flow into the Barton Creek
watershed (H&H Resources 2017). This improvement would reduce the amount of roadway
contaminants potentially reaching the Barton Creek watershed and, indirectly, the Barton Springs
complex, during storm events. As stated previously, construction-phase BMPs would be
developed to minimize erosion and prevent the loss of sediment from the construction site.
Additionally, all six of the previously identified recharge features confirmed during the Geologic
Assessment in 2016 are located within the limits of construction. These features would receive
additional protections intended to prevent polluted runoff from reaching the aquifer and to
preserve their recharge capabilities in the long-term. Even though there is a likely hydrologic
connection between the area directly affected by the proposed action and Williamson Creek and
Devil's Pen Creek, and ultimately the Barton Springs and Cold Spring complexes, it does hot
equate to a reasonable certainty that indirect effects will occur.
The existing impervious cover is 74.90 acres and will double in the proposed action to 148.54
acres. The total suspended solids (TSS) load being discharged from the project area in existing
conditions is calculated at 979 pounds. The load that is proposed to be discharged after the
project is constructed is less that the 979 pounds with a doubling of the impervious surface area.
h-ere-is-a-net-ucti-mrirrthe-am:ou'fflS-leaving the proj~
condition, which represents a net improvement or net zero over current baseline conditions as a
result of the proposed action.
Regarding designated critical habitat for the ABS, the surface habitat primary constituent
elements (PC Es) of critical habitat are water from the Barton Springs Segment of the Edwards
Aquifer, rocky substrate with interstitial spaces, aquatic invertebrates for food, and the
subterranean aquifer. The subsurface PCEs are water from the Barton Springs Segment of the
EXHIBIT A
Edwards Aquifer, subsurface spaces, and aquatic invertebrates for food. As previously stated,
the proposed action is protective of the PCEs of critical habitat because TxDOT' s BMPs provide
for the minimization of TSS and other pollutants during construction by significantly reducing
the offsite transport of these pollutants into the aquifer in absolute quantity and concentration as
we have previously stated. The BMPs will maintain water clarity and minimizing turbidity
through a reduction of the absolute quantity of sediment (as above) transported from the
proposed action area and ultimately into the aquifer. The BMPs will reduce pollutants,
particularly TSS, from affecting rocky substrates by minimizing sedimentation. Similarly, the
proposed action BMPs will reduce TSS, trap heavy metals (e.g., zinc), and hydrocarbons in the
BMP train (e.g., silt fence, rock berms, detention basins, HMTs, etc.) to ensure the maintenance
of diverse aquatic invertebrate community upon which the ABS relies for food and because these
salamander prey items are particularly sensitive to contaminants in water. The proposed action
will be built at grade and above the water table so that no physical effects to subsurface spaces or
the subterranean aquifer are likely beyond the water quality and water chemistry stressors
discussed herein.
Based on the information provided, additional information received in e-mails and during phone
calls, conversations with species leads, and proper implementation of the avoidance and
minimization measures, the Service concurs with TxDOT's conclusion that the project associated
with this Informal Consultation may affect, but is not likely to adversely affect, the Austin blind
salamander and Barton Springs salamander, pursuant to section 7 of the Act.
No further endangered species consultation will be required unless: 1) the identified action is
subsequently modified in a manner that causes an adverse effect on any listed species or
designated critical habitat; 2) new information reveals the identified action may affect federally
protected species or designated critical habitat in a manner or to an extent not previously
considered; 3) a new species is listed or a critical habitat is designated under the Act that may be
affected by the identified action; 4) additional federally protected species are identified in the
project area or, 5) the project is not completed within four years of the date of this consultation.
If new effects are identified in the future, the project proposal should be resubmitted to our office
for further consideration. We appreciate your efforts to conserve these sensitive species. If you
have any questions or comments, please contact Kevin Maurice at 512-334-8402.
E-fax: denis.palafox@txdot.gov
EXHIBIT A
EXHIBIT B
Case No. 19-CV-762
Via Electronic Mail and FedEx
May 30, 2019
James Bass, Executive Director Margaret Everson, Acting Director

Texas Department of Transportation U.S. Fish and Wildlife Service
125 East 11th St. 1849 C Street, NW
Austin, TX 78701 Washington, DC 20240
james.bass@TxDOT.gov Margaret_Everson@fws.gov
Terry P. McCoy, P.E., District Engineer Amy Lueders, Regional Director

Austin District Southwest Regional Office
Texas Department of Transportation U.S. Fish and Wildlife Service
7901 N. IH-35 500 Gold Avenue SW
Austin, TX 78753 Albuquerque, NM 87102
Terry.McCoy@txdot.gov RDLueders@fws.gov
David Bernhardt, Secretary of the Interior

U.S. Department of the Interior
1849 C Street, N.W.
Washington, DC 20240
exsec@ios.doi.gov
RE: Notice of Intent to Sue the Texas Department of Transportation and the United
States Fish and Wildlife Service Regarding Violations of Section 7 of the Endangered
Species Act for the Oak Hill Parkway Project (CSJs: 0113-08-060 and 0700-03-077)
On behalf of Save Our Springs Alliance (“SOS”), we hereby provide notice, pursuant
to Section 11(g) of the Endangered Species Act (“the Act”), 16 U.S.C. § 1540(g), that the
United States Fish and Wildlife Service (“the Service”) and the Texas Department of
Transportation (“TxDOT”) are in violation of Section 7 of the Act, 16 U.S.C. § 1536, and the
Act’s consultation regulations, 50 C.F.R. Part 402. 1
These violations occurred in connection with the construction and expansion of

mainlanes, overpasses, bridges, and direct connectors at U.S. Highway 290 and State
1 These violations of the Act are also arbitrary and capricious, an abuse of discretion, and not in
accordance with law, in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2).
EXHIBIT B
Highway 71 West through Oak Hill in Travis County, Texas, also known as the Oak Hill
Parkway Project (“Oak Hill Parkway” or “the Project”).
Specifically, SOS intends to file a lawsuit challenging TxDOT’s and the Service’s: (1)
failure to use the best scientific data available in reaching a determination that the Oak Hill
Parkway is “not likely to adversely affect” the Barton Springs Salamander (Eurycea
sosorum) and the Austin Blind Salamander (Eurycea waterlooensis) (collectively
“endangered salamanders”); (2) failure to insure against jeopardy to the continued
existence of the endangered salamanders or destruction or modification of the Austin Blind
Salamander’s critical habitat; and(3) failure to re-initiate consultation in light of new
information showing the Oak Hill Parkway may affect the endangered salamanders and
critical habitat in a manner or to an extent not previously considered.
Save Our Springs Alliance is an environmental nonprofit using education, advocacy,

and litigation to protect the Edwards Aquifer, its springs and contributing streams, and the
natural and cultural heritage of the Hill Country, with special emphasis on Barton Springs.
Since 1992, SOS has combined science and economics with legal expertise to advocate for
preserving Barton Springs and managing Austin’s urban development.
STATUTORY BACKGROUND
When a species has been listed or critical habitat designated under the Act, all
federal agencies—including TxDOT as a delegate of the Federal Highway Administration
(“FHWA”) 2—must ensure through consultation with the Service that their programs and
activities are in compliance with the Act. 16 U.S.C. § 1536(a)(2). Through consultation
under Section 7 of the Act, federal agencies work with the Service to determine whether
their actions will jeopardize listed species’ survival or adversely modify designated critical
habitat, and if so, identify ways to modify the action to avoid that result. 50 C.F.R.
§ 402.14. An agency is required to review its actions “at the earliest possible time” to
determine whether the action may affect listed species or critical habitat. Id. § 402.14(a).
Section 7 applies to all actions in which there is discretionary Federal involvement

or control. 50 C.F.R. § 402.03. The scope of agency actions subject to consultation is
broadly defined to encompass “all activities or programs of any kind authorized, funded, or
carried out, in whole or in part, by Federal agencies.” 50 C.F.R. § 402.02 (defining “action”).
For each federal action, the agency must ask the Service whether any listed or
proposed species may be present in the area of the agency action. 16 U.S.C. § 1536(c)(1); 50
C.F.R. § 402.12. If listed or proposed species may be present, the agency must prepare a
2TxDOT acts in the capacity of a federal agency (FHWA) and carries out environmental review,
consultation, and other actions required by federal environmental laws for federally funded or
approved projects, including the transportation that is the subject of this notice, under 23 U.S.C.
§ 327 and a Memorandum of Understanding executed by FHWA and TxDOT on December 16, 2014.
60-Day Notice of Intent to Sue Page 2 of 11
May 30, 2019
EXHIBIT B
“biological assessment” to determine whether the listed species may be affected by the
proposed action. Id.
If an agency determines that its action “may affect, but is not likely to adversely
affect” a listed species or its critical habitat, the regulations permit “informal consultation,”
during which the Service must concur in writing with the agency’s determination. 50 C.F.R.
§ 402.14(a)-(b). If the agency determines that its action is “likely to adversely affect” a
listed species or critical habitat, or if the Service does not concur with the agency’s “not
likely to adversely affect” determination, the agency must engage in “formal consultation,”
as outlined in 50 C.F.R. § 402.14 (“General Formal Consultation”). 50 C.F.R. §§ 402.02,
402.14(a). An agency is relieved of the obligation to consult on its actions only where the
action will have “no effect” on listed species or designated critical habitat. Effects
determinations are based on the direct, indirect, and cumulative effects of the action when
added to the environmental baseline and other interrelated and interdependent actions. 50
C.F.R. § 402.02 (definition of “effects of the action”).
To complete formal consultation, the Service must provide the agency with a
“biological opinion” explaining how the proposed action will affect the listed species or
habitat. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14. If the Service concludes that the proposed
action “will jeopardize the continued existence” of a listed species, the biological opinion
must outline “reasonable and prudent alternatives.” 16 U.S.C. § 1536(b)(3)(A). If the
biological opinion concludes that the action is not likely to jeopardize the continued
existence of a listed species, and will not result in the destruction or adverse modification
of critical habitat, the Service must provide an “incidental take statement.” This document
specifies the amount or extent of such incidental taking on the listed species and any
“reasonable and prudent measures” that the Service considers necessary or appropriate to
minimize such impact, and sets forth the “terms and conditions” that an action agency must
comply with to implement those measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i).
Taking of listed species without the coverage of an incidental take statement is a violation
of Section 9 of the Act. 16 U.S.C. § 1538.
The re-initiation of formal consultation is required and must be requested by TxDOT

or the Service if: (1) the amount or extent of taking specified in the incidental take
statement is exceeded; (2) new information reveals effects of the action that may affect
listed species or critical habitat in a manner or to an extent not previously considered; (3)
the action is modified in a manner that causes an effect to the listed species or critical
habitat that was not considered in the biological opinion; or (4) a new species is listed or
critical habitat designated that may be affected by the identified action. 50 C.F.R. § 402.16.
This requirement applies equally to informal consultation. See Conservation Congress v.
Finley, 774 F.3d 611, 618 (9th Cir. 2014) (holding that the consultation requirements of 50
C.F.R. § 402.16 apply to “both formal and informal consultation.”); see also Ctr. for Native
Ecosystems v. Cables, 509 F.3d 1310, 1324-25 (10th Cir. 2007) (finding that re-initiation of
informal consultation is required if the 50 C.F.R. § 402.16 factors are met).

May 30, 2019
EXHIBIT B
Under Section 7(d) of the Act, once a federal agency initiates or re-initiates
consultation on an action under the Act, the agency “shall not make any irreversible or
irretrievable commitment of resources with respect to the agency action which has the
effect of foreclosing the formulation or implementation of any reasonable and prudent
alternative measures which would not violate subsection (a)(2) of this section.” 16 U.S.C.
§ 1536(d). The purpose of Section 7(d) is to maintain the status quo pending the
completion of interagency consultation. Section 7(d) prohibitions remain in effect
throughout the consultation period and until the federal agency has satisfied its obligations
under Section 7(a)(2) that the action will not result in jeopardy to the species or adverse
modification of its designated critical habitat.
FACTUAL BACKGROUND
A. The Oak Hill Parkway Project
The Oak Hill Parkway Project (CSJs: 0113-08-060 and 0700-03-077) would expand
U.S. Highway 290 (“US 290”) and State Highway 71 West (“SH 71”) through Oak Hill in
Travis County, Texas. The Project would include the construction of a controlled-access
highway with frontage roads, beginning just east of Joe Tanner Lane and continuing west to
approximately Circle Drive on US 290 and to approximately Silvermine Drive on SH 71.
Main lanes would vary from two to four lanes in each direction and would generally be
twelve feet wide with ten-foot shoulders. Grade-separated intersections would be
constructed at several locations. In December 2018, TxDOT finalized the Environmental
Impact Statement that purported to be in accordance with federal National Environmental
Policy Act (“NEPA”) standards.
TxDOT initiated consultation under Section 7 of the Act by submitting a letter to the
Service dated September 1, 2017, along with a Biological Assessment (“BA”). TxDOT had
determined that the Project “may affect, but is not likely to adversely affect,” the Barton
Springs and Austin Blind Salamanders, and sought the Service’s concurrence with its
determinations.
On December 20, 2017, the Service sent TxDOT a letter in which it concurred with
TxDOT’s determination that the Oak Hill Parkway may affect, but is not likely to adversely
affect the Barton Springs Salamander or the Austin Blind Salamander, and that there will be
no adverse modification of designated critical habitat for the Austin Blind Salamander
(“Concurrence Letter”). This concluded informal consultation, and the Service’s
concurrence meant that formal consultation would not be required.
The Oak Hill Parkway is located over the Contributing Zone and Recharge Zone of
the Barton Springs segment of the Edwards Aquifer. This aquifer and its watershed are
among the most environmentally sensitive and significant areas in the State of Texas. The
Edwards Aquifer is a karst aquifer characterized by open chambers, such as caves,
fractures, and other cavities that were formed either directly or indirectly by the

May 30, 2019
EXHIBIT B
dissolution and fracturing of subsurface rock formations, and is highly vulnerable to

pollution.
The Project will roughly double the impervious cover in the Project area, from 74.90
acres currently to 148.54 acres once the Project is built (an increase of 73.64 acres of
impervious cover). In addition, the Project would require the placement of up to 723
columns, 167 of which would be located within the Recharge Zone. Column levels would
reach depths between 19 and 40 feet. An estimated total of 2,030,643 cubic yards (CY) of
bedrock may be directly impacted by construction activities for the Project.
The Oak Hill Parkway is part of a larger effort to increase and expand highways in
Southwest Travis County and Northern Hays County. State Highway 45 Southwest is a
recently completed four-mile toll road constructed almost entirely on the Barton Springs
Recharge Zone, a few miles from the Oak Hill Parkway. The MoPac Intersections project
involves two miles of expanded highway lanes and grade separations entirely within the
Recharge Zone. The MoPac South Express Lanes Project, a proposed eight-mile toll road,
would connect the MoPac Intersections Project to Lady Bird Lake, crossing the Barton
Springs Recharge Zone and Barton Creek.
B. Barton Springs Salamander and Austin Blind Salamander
The Barton Springs Salamander (Eurycea sosorum) and Austin Blind Salamander
(Eurycea waterlooensis) are federally listed endangered species that inhabit Barton Springs
and other springs fed by the Edwards Aquifer. Both are neotenic (do not transform into a
terrestrial form) and spend their entire lives in aquatic habitats such as springs, wet caves,
and groundwater. The endangered salamanders use interstitial spaces (empty voids
between rocks) within the spring or streambed substrate, which provide foraging habitat
and protection from predators and drought conditions. The Austin Blind Salamander is
thought to be more subterranean than the primarily surface-dwelling Barton Springs
Salamander.
Both salamander species rely on clean, well-oxygenated spring water with

substrates that are free of sediment. Changes in water quality and flow patterns can render
aquatic habitat unsuitable for the salamanders, and the major threat to both species is
reduced habitat quality due to urbanization and increased impervious cover. Additionally,
contaminants from runoff can impact both the salamanders and their invertebrate prey
base.
VIOLATIONS OF THE ENDANGERED SPECIES ACT
Violation of Section 7(a)(2): The Service and TxDOT Failed to Use the Best Scientific
Data Available in Reaching a “Not Likely to Adversely Affect” Determination
The Service’s Concurrence Letter and TxDOT’s BA (as well as other correspondence
generated during informal consultation) were inadequate and failed to support the
May 30, 2019
EXHIBIT B
agencies’ “not likely to adversely affect” determination. The agencies failed to use the best
scientific and commercial data available, as required by Section 7(a)(2), in making this
determination.
Effects determinations are based on the direct, indirect, and cumulative effects of
the action when added to the environmental baseline and other interrelated and
interdependent actions. 50 C.F.R. § 402.02 (definition of “effects of the action”). Despite this
requirement, the agencies failed to conduct a thorough analysis during informal
consultation, which resulted in the unreasonable determination that the Project is “not
likely to adversely affect” the endangered salamanders.
The Project will negatively impact the quantity and quality of water recharging the
Edwards Aquifer by increasing impervious cover, increasing the probability of occurrence
of hazardous material spills, and causing increased sedimentation that will directly impact
both surface and subsurface drainage areas of karst features. The resulting degradation of
water quality and impairments of water quantity have direct negative impacts on the
endangered salamander species.
In concurring with TxDOT’s determination that the Oak Hill Parkway was “not likely
to adversely affect” the Austin Blind Salamander and Barton Springs Salamander, the
Service failed to rationally consider and explain a number of relevant factors, including but
not limited to the potential impacts of void encounters on the endangered salamanders, the
broad range of likely pollutants other than total suspended solids (“TSS”), additional
impacts of highway projects currently being planned or constructed in the Barton Springs
recharge zone, and the available scientific evidence regarding effectiveness of sediment
controls and impacts of impervious cover on the endangered salamanders.
The Service bases its concurrence with TxDOT’s “not likely to adversely affect”
determination on TxDOT’s as-yet-unspecified implementation of “best management
practices” (“BMPs”) to reduce TSS loading after Project completion. These BMPs are
required under state regulations promulgated to protect the Edwards Aquifer. 3 However,
the planned, or to be planned, BMPs are only intended to remove the increase of TSS from
the Project after construction. TSS is the only pollutant specifically regulated by the
Edwards Rules, and TxDOT’s BMP designs reflect as such. 4 A major shortcoming of this
analysis is the lack of recognition that TSS is only one of many water-quality constituents
that can affect the endangered salamanders.
Moreover, focusing only on post-project TSS loadings ignores the highly probable
increase in loadings to the Edwards Aquifer during construction within the channel of a
major recharging creek that no amount of erosion and sedimentation controls can
adequately prevent, even in the absence of failure. And failures of TxDOT water quality
330 Tex. Admin. Code Ch. 213 (“Edwards Rules”).

4As TxDOT explained, “[m]ost BMPs designed to improve water quality focus on TSS
removal in stormwater runoff.” BA at 14.
May 30, 2019
EXHIBIT B
controls in the Barton Springs Zone have been a problem in the past, as the Service is well
aware. 5 The consequence of these deficiencies is that the potential impact of the Project on
the endangered salamanders is underestimated. Therefore, a “not likely to adversely affect”
determination is unreasonable.
There is also a high risk for harmful water quality impacts associated with the
intersection of voids during roadway excavation. 6 The Concurrence relies on TxDOT’s
adherence to “void mitigation measures” that will “protect the Edwards Aquifer from TSS
during construction.” Concurrence at 5. These void mitigation measures only specify
actions to take after a void has been discovered, and ignore the possibility of adverse
impacts when a void is first encountered. Moreover, TSS is not the only pollutant that could
enter the aquifer through an intersected void, and the construction phase is not the only
time voids need protection. There is no discussion in the Service’s letter or TxDOT’s
materials about protecting voids from other pollutants, nor protecting voids during
operation of the Project.
The Concurrence Letter also relies on an as-yet-unwritten Water Pollution

Abatement Plan and Stormwater Pollution Prevention Plan to ensure that there will be no
water quality impacts to the endangered salamander species. Concurrence at 5. These
plans are required by state regulations administered by the Texas Commission on
Environmental Quality (“TCEQ”). The Concurrence Letter makes it sound like these plans
already exist and provide concrete measures to protect water quality, but concurrent
reports and communications by TxDOT indicate that these plans have not been submitted
to the TCEQ for review and approval.
The purported “analysis” of the Project’s impacts on salamanders does not reference
any scientific literature but instead relies on unfounded assumptions. For example, the
Concurrence Letter claims that stormwater runoff from this project will mix with other
stormwater runoff such that any polluted runoff from the Project will be so diluted that it
will not adversely affect salamanders. This line of reasoning assumes without justification
that the mixing stormwater is sufficiently free of pollutants and ignores the fact that TxDOT
itself is currently engaged in several highway construction projects in the Recharge Zone,
ongoing or planned. Another unjustified assumption appears where the Service writes that
it has “determined that the BMPs and the reasonable compounded effectiveness when
these are layered (or stacked) with other BMPs, even where absolute effectiveness data is
lacking, will protect potentially affected species from harmful effects caused by the
5 The Concurrence acknowledges that “[i]ndirect effects to water quality could result from polluted
stormwater runoff from the project area during both the construction and operation phases if BMP
failure were to occur,” but this concern is never revisited addressed. See Concurrence at 6.
6 The greatest possibility for groundwater impacts during the construction phase of the
proposed project could occur if voids connected to the aquifer or containing groundwater are
intersected during the down cutting of bedrock below the current grade or other excavation
activities, such as for bridge piers.” Final EIS at 86.
May 30, 2019
EXHIBIT B
proposed action.” Concurrence at 5. This violates the Act because “[i]f the nature of the
effects cannot be determined,” the Service should not concur, as “benefit of the doubt is
given to the species.” U.S. Fish & Wildlife Serv. & Nat’l Marine Fisheries Serv., Endangered
Species Consultation Handbook 3-12 (1998). 7
The Service’s deficient analysis is also made evident by the Concurrence Letter’s
factual inconsistencies and lack of independent scrutiny. The Concurrence at one point
states that the Project “will be built at grade,” in contradiction of every description of the
Project (including the Concurrence’s earlier description). Compare Concurrence at 7 with
id. at 1. A close review of the Concurrence reveals that entire paragraphs were lifted from
TxDOT’s BA and a Concurrence Letter from another project. In fact, the entire paragraph
with the above erroneous description appears word for word in the concurrence letter for
the MoPac Intersections Project (where it was also inaccurately describing the project as
“at grade”). Although it is understandable that the Service would use TxDOT’s language in
describing the Project and other background facts, the Concurrence goes far beyond that—
wholly transcribing TxDOT’s conclusions without adding any biological expertise to the
discussion.
In addition, there was no mention of the TxDOT’s currently ongoing and planned
projects in the Edwards Aquifer Recharge Zone, even though those projects are likely
interrelated and interdependent actions to the Project. These projects include State
Highway 45 Southwest, the MoPac Intersections Project, and the Bee Caves Road
Expansion, all of which were under construction during the consultation period, as well as
the planned MoPac South Express Lanes Project. Regardless of whether TxDOT considers
these projects interrelated, an effects determination must consider these known current
and future projects when looking at the cumulative effects of the Project. 50 C.F.R. § 402.02
(defining “cumulative effects” and “effects of the action”).
Because TxDOT and the Service failed to consider all direct, indirect, and cumulative
effects to the endangered salamanders and did not rely on the best available science, the
conclusion that the Project “is not likely to adversely affect” the endangered salamanders
and decision to forego formal consultation was arbitrary, capricious, and not in accordance
with the Endangered Species Act and the Administrative Procedure Act. 16 U.S.C.
§ 1536(a)(2); 5 U.S.C. § 706.
Because the Service concurred with TxDOT’s “not likely to adversely affect”
determination for the Austin Blind Salamander and Barton Springs Salamander, no
biological opinion was prepared for the Oak Hill Parkway, and therefore no incidental take
statement was prepared that would have required mandatory terms and conditions to
minimize impacts to these species, including specific mitigation measures as well as robust
monitoring and reporting requirements. 16 U.S.C. § 1536(b); 50 C.F.R. § 402.14.
7 Available at https://www.fws.gov/endangered/esa-library/pdf/esa_section7_handbook.pdf.
May 30, 2019
EXHIBIT B
Violation of Section 7(a)(2): TxDOT Failed to Insure Against Jeopardy to the

Continued Existence of the Endangered Salamanders or Destruction or Modification
of the Austin Blind Salamander’s Critical Habitat
The Oak Hill Parkway is likely to harm the endangered Austin Blind Salamander and
Barton Springs Salamander through negative impacts to water quality and quantity and
altered flow regimes in the Edwards Aquifer. These harms, when taken together with
baseline conditions and impacts of other ongoing and foreseeable activities, may jeopardize
the continued existence of the Austin Blind Salamander and Barton Springs Salamander,
and may adversely modify the critical habitat of the Austin Blind Salamander.
TxDOT did not properly consider the impacts of the Oak Hill Parkway on the Austin
Blind Salamander and Barton Springs Salamander in their “not likely to adversely affectˮ
determination, and TxDOT has not adequately mitigated the Project’s harmful impacts.
Rather than take measures to avoid jeopardy of these endangered species through formal
consultation with the Service, TxDOT unreasonably relied on the Service’s unlawful
concurrence.
Violation of Section 7(a)(2) and 50 C.F.R. § 402.16: TxDOT and the Service Failed to
Re-initiate Consultation in Light of New Information Showing the Oak Hill Parkway
May Affect the Endangered Salamanders and Critical Habitat in a Manner or to an
Extent Not Previously Considered.
TxDOT and the Service have failed to timely re-initiate consultation regarding the
impacts of the Oak Hill Parkway on the Austin Blind and Barton Springs Salamanders, in
violation of the Act. 16 U.S.C. §§ 1536(a)(2), 1536(b)(1)(A); 50 C.F.R. §§ 402.14, 402.16.
The Concurrence Letter provides that re-initiation of consultation is required when, among
other potential developments, “new information reveals the identified action may affect
federally protected species or designated critical habitat in a manner or to an extent not
previously considered.” Events triggering the need to re-initiate consultation occurred
subsequent to the Service’s concurrence. These events include the realization of TxDOT’s
egregious errors in calculating the increased load of TSS, as well as new information
regarding the presence of the Barton Springs Salamander.
Re-initiation of consultation is required because the Service’s concurrence relied on

TxDOT’s previous calculations which had demonstrated a net removal of TSS load. 8 50
8 See Forest Guardians v. Johanns, 450 F.3d 455, 465-66 (9th Cir. 2006) (finding the action agency
violated the Act by not re-initiating informal consultation where the agency “regularly failed to
meet the monitoring requirements on which the ‘not likely to adversely affect’ determination for
those species was premised.”); Sierra Club v. Marsh, 816 F.2d 1376, 1388 (9th Cir. 1987) (finding
the action agency’s failure to re-initiate consultation violated 50 C.F.R. § 402.16 because it failed to
secure replacement habitat, a conservation measure deemed “necessary to minimize the project’s
effects” in the initial consultation, thus constituting new information that affected the listed species
“in a manner or to an extent not previously considered.”).
May 30, 2019
EXHIBIT B
C.F.R. § 402.16(b), (c). A year after presenting TSS removal figures to the Service, TxDOT
informed the Service that it had erred in the calculations, and the Project would no longer
result in a net reduction of TSS load. The accurate conclusions result in a net addition of
TSS load from the Project. Consultation must be re-initiated to evaluate the potential effects
to the endangered salamanders in light of the corrected TSS calculations as set forth in
TxDOT’s email to the Service dated November 19, 2018. TxDOT did not and has not offered
concrete measures to reduce net TSS load, and the Service should initiate formal
consultation to develop specific measures that would achieve the net reduction in TSS that
TxDOT has promised.
Re-initiated consultation should also evaluate the Project’s impacts given recent
information regarding new occurrences of the Barton Springs Salamander, as published in
Devitt, TJ, Nissen BD. 2018. New occurrence records for Eurycea sosorum Chippindale,
Price, & Hillis, 1993 (Caudata, Plethodontidae) in Travis and Hays counties, Texas, USA,
Check List: The Journal of Biodiversity Data. Specifically, Barton Springs Salamanders were
discovered at Backdoor Springs, downgradient of the Project, approximately 1.68 miles
north of the MoPac/US 290/SH 71 interchange. Final Environmental Impact Statement at
105. According to TxDOT:
No recent flow-path modeling or groundwater basin delineation maps for

this spring are available; however, in 1997 the [City of Austin] estimated that
the Backdoor Spring groundwater basin roughly included all of the area
between the spring on Barton Creek and US 290, which is approximately two
square miles in size (COA, 1997). Although a portion of the Preferred
Alternative may lie upgradient from Backdoor Spring, the proposed BMPs
would protect surface water and groundwater in the OHP Project area by
minimizing erosion, reducing TSS, and reducing the rate and velocity of
discharged stormwater, which would decrease flood potential and thus
reduce the amount of roadway contaminants potentially reaching the Barton
Creek watershed during storm events.
Final EIS at 108.
Thus, according to the best available science, this known salamander habitat has a
small watershed encompassing only the area between the Project and the spring site. This
warrants a close review of how the Project may affect Barton Springs Salamanders at
Backdoor Springs.
Pending completion of re-initiated consultation, the Act prohibits TxDOT from

making any “irreversible or irretrievable commitment of resources” with respect to the Oak
Hill Parkway which may foreclose the formulation or implementation of any reasonable
and prudent alternative measures. 16 U.S.C. § 1536(d). To the extent that TxDOT has made
or is making irreversible and irretrievable commitments with regard to the Oak Hill
Parkway, TxDOT is also violating Section 7(d) of the Act. 16 U.S.C. § 1536(d).

May 30, 2019
EXHIBIT B
By allowing and authorizing the Oak Hill Parkway to proceed, prior to the re-
initiation and completion of an adequate consultation with the Service, TxDOT is failing to
protect the Austin Blind and Barton Springs Salamanders from jeopardy, in violation of
Section 7(a)(2) of the Act. 16 U.S.C. § 1536(a)(2); see Ctr. for Biological Diversity v. U.S.
Bureau of Land Mgmt., 698 F.3d 1101 (9th Cir. 2012) (“[W]here an action agency does not
re-initiate consultation with the Service despite the failure of promised conservation
measures, the [concurrence] for the proposed action becomes invalid.”).
CONCLUSION
If TxDOT and the Service do not act within sixty days to correct their ongoing
violations of the Act, Save Our Springs Alliance will pursue litigation in federal court against
them. We will seek injunctive and declaratory relief, and legal fees and costs regarding
these violations. See 16 U.S.C. § 1540(g). If you have any questions, or wish to meet to
discuss this matter, or feel this notice is in error, please contact Kelly Davis at
kelly@sosallliance.org or 512-477-2320, ext. 106.
Sincerely,
Kelly Davis
Senior Staff Attorney
Save Our Springs Alliance
4701 Westgate Blvd.
Bldg. D, Ste. 401
Austin, TX 78745
(512) 477-2320, ext. 106
kelly@sosalliance.org
Cc:
Mr. Adam Zerrenner

Field Supervisor
United States Fish and Wildlife Service
10711 Burnet Road, Suite 200
Austin, TX 78758
Adam_zerrenner@fws.gov
Mr. Mike Heiligenstein

Executive Director, Central Texas Regional Mobility Authority
3300 N IH-35, Suite 300
Austin, TX 78705
mstein@ctrma.org
May 30, 2019
EXHIBIT B

Save Our Springs Vs TxDOT & U.S. Fish and Wildlife

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Case 1:19-cv-00762 Document 1 Filed 07/29/19 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

SAVE OUR SPRINGS ALLIANCE, Inc., §

reinitiate consultation in light of new information about the Project’s impacts.

jeopardize the survival of threatened or endangered species or adversely modify critical

the best scientific and commercial data available.

Defendants’ full compliance with the law.

4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question

provision); and 5 U.S.C. § 702 (Administrative Procedure Act).

of the ESA violations alleged herein as required by 16 U.S.C. § 1540(g)(2)(A). Defendants

7. Plaintiff Save Our Springs Alliance, Inc. is a nonprofit charitable corporation

oriented research, and conservation advocacy activities—including, among others, filing

Barton Springs Salamander as endangered.

members derive professional, aesthetic, spiritual, recreational, economic, scientific, and

alongside the US 290 and SH 71 right-of-ways.

construction and operation of the Oak Hill Parkway Project.

13. Defendant Texas Department of Transportation is a state agency with its

capacity of a federal agency, specifically as FHWA.

been listed as threatened or endangered with extinction pursuant to the ESA.

and threatened species…” 16 U.S.C. § 1531(b).

National Marine Fisheries Service, respectively.

all federal agencies—including TxDOT as a delegate of FHWA—must ensure that their

programs and activities comply with the ESA.

likely to jeopardize the continued existence of any endangered species or threatened

is determined by [the Service] … to be critical.” 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14. In

available.” 16 U.S.C. § 1536(a)(2).

19. An action would “jeopardize the continued existence” of a species if it

“reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood

reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02.

of “effects of the action”).

the Federal action subject to consultation.” 50 C.F.R. § 402.02.

§ 402.02. Delineating the appropriate action area is fundamental to conducting a lawful

assessment of a project’s impacts during consultation.

effect of foreclosing the formulation or implementation of any reasonable and prudent

of consultation. Section 7(d) prohibitions remain in effect throughout the consultation

habitat. 50 C.F.R. § 402.09.

assist the Federal agency in determining whether formal consultation or a conference is

formal consultation. Id. §§ 402.13(a), 402.14(b).

consultation. Id. § 402.14(a).

26. Formal consultation concludes with the Service’s issuance of a biological

jeopardy. 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). The Service must also

formulate discretionary conservation recommendations to reduce or eliminate the action’s

impacts on listed species or critical habitat. 50 C.F.R. § 402.14(g)(6).

jeopardizing the continued existence of listed species or resulting in the destruction or

adverse modification of critical habitat. 50 C.F.R. § 402.02.

person—including governmental entities—to “take” any endangered species of fish or

The Service defines “harm” to include “significant habitat modification or degradation

where it actually kills or injures wildlife by significantly impairing essential behavioral

patterns, including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.

statement’s terms and conditions. 16 U.S.C. § 1536(o)(2).

31. Reinitiation of consultation is required under certain circumstances,

critical habitat in a manner or to an extent not previously considered, or if the action is

not considered” during consultation. 50 C.F.R. § 402.16.

aside” agency action, findings, or conclusions found to be “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A).

Salamanders depend on these underground waters.

34. The Edwards Aquifer is a karst limestone aquifer characterized by open

moves in a northeastern direction along the fault zone.

demonstrated a known connection between Williamson Creek and Slaughter Creek to

b. The Endangered Salamanders

free of pollutants, as well as subsurface voids free of sediment. Sediment is of particular

find food, and to avoid predators.

highly sensitive to pollution, including sediment and petroleum hydrocarbons from