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Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 1 of 30

UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION FLE:o
Save Barton Creek Association, Fix290, Save
2019JUL29 PM 5:09
Oak Hill, South Windmill Run Neighborhood
Association, Clean Water Action, Michael and
Crystal Bomer, and Alan Watts WESTE4: ..T ',F TEXAS

Plaintiffs,

v. §
§
Texas Department of Transportation, Capital §
Area Metropolitan Planning Organization, §

James M. Bass, in his official capacity as


§
§
UA9iW076 I RP
Executive Director of TxDOT, §
§
Carlos Swonke, in his official capacity as the §
Director of Environmental Affairs Division of §
TxDOT, §
§
Ashby Johnson, in his official capacity as §
Executive Director of Capital Area §
Metropolitan Planning Organization §
§
Defendants. §

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

I. INTRODUCTION

1. Save Barton Creek Association, Fix290, Save Oak Hill, South Windmill Run

Neighborhood Association, Clean Water Action, Michael and Crystal Bomer, and Alan Watts

(collectively "Plaintiffs") bring this action against Texas Department of Transportation

("TxDOT"), Capital Area Metropolitan Planning Organization ("CAMPO"), James M. Bass, in

his official capacity as Executive Director of TxDOT, Carlos Swonke, in his official capacity as

the Director of Environmental Affairs Division of TxDOT, and Ashby Johnson, in his official

capacity as Executive Director of CAMPO (collectively "Defendants" or "TxDOT"), for approval

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of the Oak Hill Parkway Project ("OHP Project" or "the Project") in violation of the National

Environmental Policy Act ("NEPA") and the Administrative Procedures Act ("APA")

2. The OHP Project is a proposed reconstruction of the intersection of U.S. Highway (US)

290 West and State Highway (SH) 71 West through Oak Hill, a community in Southwest Austin,

Texas. Local residents know the intersection as the "the Y at Oak Hill" or simply, "the Y." By

TxDOT's own description, the Project extends along US 290 from State Loop 1 ("Loop 1" or

"MoPac") to west of Ranch-to-Market Road (RM) 1826 for a distance of approximately 6.15

miles. From Williamson Creek, east to MoPac, the Project consists mostly of resurfacing, while

the area of new construction to the west in Oak Hill on US 290 would be approximately four miles

long. The Project also includes the interchange on SH 71 from US 290 to Silvermine Drive, a

distance of approximately 1.31 miles.

3. The OHP Project would traverse several unique and sensitive natural, historic, and cultural

places. Dozens of large old oak trees that gave Oak Hill its name exist in the Project right-of-way

("ROW"). Williamson Creek flows parallel to SH 71 and US 290 before crossing under the US

290 bridge where the headwaters and perennial springs can be found. The Project spans the

recharge zone and contributing zone of the most environmentally-sensitive aquifer in the State of

Texas: the Barton Springs segment of the Edwards Aquifer, which is a network of underground

channels and caves fed by recharge features found in Williamson Creek and dotted across the

landscape and within the Project ROW.

4. The OHP Project will threaten the water quality of Williamson Creek by paving over

floodplains, the Williamson Creek watershed, and the Edwards Aquifer. The depressed lanes will

require excavation into the limestone aquifer, adversely altering karst geology and hydrology. The

elevated lanes will have noise and aesthetic impacts and will damage the city-owned greenbelt

park on Williamson Creek, and other valuable cultural and historic places.

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5. Plaintiffs are non-profit environmental and conservation organizations, local neighborhood

associations, community groups, and individuals, all of whom have a strong interest in protecting

Oak Hill's natural environment, as well as its historic and cultural resources. Plaintiffs have waited

a long time for a project that supplies traffic relief without destroying the community it is intended

to serve, and welcome a prompt, but just, resolution.

II. JURISDICTION & VENUE

6. This Court has jurisdiction over this action under NEPA and the APA, 42 U.S.C. § 4321-

4370h (NEPA), 5 U.S.C. § 701-706 (APA), and 28 U.S.C. § 1331 (federal question).

7. The Court has the authority to issue the requested declaratory and injunctive relief pursuant

to 28 U.S.C. § 2201-2202, and 5 U.S.C. § 705-706.

8. The challenged agency actions are final and subject to judicial review pursuant to 5 U.S.C.

§ 702, 704, and 706. Plaintiffs commented on both versions of the TxDOT's Environmental

Impact Statement and have exhausted all available administrative remedies.

9. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1)-(2) because the OHP

Project, is located in Travis County, Texas within the Austin Division of the Western District of

Texas.

III. PARTIES

10. Plaintiff Save Barton Creek Association ("SBCA") is a 501(c)(3) non-profit

organization incorporated in the State of Texas in September 1979 with its headquarters in Austin,

Texas. Part of SBCA's mission is to protect and conserve the six watersheds of the Barton Springs

Edwards Aquifer (Barton, Bear, Little Bear, Onion, Slaughter and Williamson). SBCA has been

one of the leading conservation organizations in Austin, using education and advocacy to advance

conservation goals and preserve natural resources for future generations.


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11. Among the purposes for which it is organized, SBCA educates and advocates for the

preservation of Barton Springs located in Zilker Park, Austin, Texas and the Barton Springs

Edwards Aquifer. SBCA has advocated the preservation of these resources for 40 years.

12. SBCA brings this action on behalf of itself and its adversely affected members and

supporters who live in Central Texas. Many members currently live, recreate, or work within the

proposed Project area. Specifically, members live and work in the area where water reaching in

the Edwards Aquifer supplies Barton Springs. Air quality, land use, noise, loss of recreational

opportunities and other factors would be adversely affected by the construction of the Oak Hill

Parkway Project in its presently proposed form.

13. SBCA and its members have long been advocates of responsible, well-planned growth in

the Austin metropolitan area, participating in transportation planning processes on local, regional,

and state government levels. SBCA's activities and those of its members in land use,

transportation, air quality, water quality and habitat conservation have included community

organizing; publishing educational materials; submitting comments on local, state, and regional

transportation plans and programs, proposed permits and environmental impact statements,

including the current EIS that is subject of this action; attending and speaking at public meetings;

speaking to students and civic and other organizations; and holding events in support of land use

and transportation options that promote environmental integrity and conservation.

14. SBCA members and supporters will suffer adverse health and property impacts from

increased water pollution in the Edwards Aquifer attributable to the Project. In addition, SBCA

members would lose convenient access to parkiands in close proximity to their homes as a result

of the Project and lose opportunities to actively and passively enjoy the natural environment, the

parkiands, and waters that SBCA members regularly use, and plan to continue to use.

15. Plaintiff Fix290 is an unincorporated coalition of civic associations, businesses, and

concerned citizens that came together in 2006 to oppose TxDOT's announced plans to build an

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elevated tolled expressway through the heart of the Oak Hill community. Member organizations

include environmental groups, neighborhood and homeowner associations, and anti-toll groups.

Recognizing the need for highway improvement, Fix290 put forward an alternative concept, a

parkway at grade level that would reduce impacts to Williamson Creek and save heritage trees by

eliminating unnecessary access roads.

16. Since its beginnings in 2006, Fix290 has worked through every available avenue,

participating in stakeholder meetings, speaking as citizens at meetings of CAMPO and Austin City

Council, submitting comments at public meetings required by the EIS, and presenting a petition

with nearly 3,000 confirmed signatures. Fix290 has also published materials, developed a website,

and offered a series of community forums to help inform the public on impacts of the highway.

17. Fix290 brings this action on behalf of itself and its adversely affected supporters.

Specifically, the various existing Oak Hill neighborhood associations whose members took the

lead in launching Fix290 and still support its goals. Fix290 has supporters who live, own property,

or recreate in areas that would be adversely affected by the Project. Fix 290 members and

supporters would be adversely impacted by noise and visual nuisances, loss of heritage trees and

community historic resources, increased flood risk, and other immediate effects of the construction

and design in their backyards.

18. Plaintiff Save Oak Hill is an unincorporated non-profit organization formed to gather data

related to the natural, cultural, and historic resources in Oak Hill. Save Oak Hill members have

documented in detail the locations, species, and natural history of heritage trees more than one

hundred years old or more than 19 inches in circumference.

19. Save Oak Hill commissioned an expert study that identified historic resources in and near

the proposed Project path. The expert shared her conclusion that these resources are vulnerable to

damage or total destruction of historic integrity and recommends nearly two dozen such resources

be incorporated into a National Historic District. Among these resources possibly eligible for

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inclusion in the National Historic Register are groves of mature trees present since before the Oak

Hill community of Anglo settlers began more than 140 years ago. Save Oak Hill presented much

of this information, as well as testimony, facts, and case studies about deleterious impacts on the

community health, commercial vitality, and residential property values of neighborhoods in other

US cities from elevated highway projects and published those findings widely.

20. Save Oak Hill members have documented in detail the locations, species, and natural

history of heritage trees of more than one hundred years age and/or more than 19 inches

circumference. This data was presented in a number of forums and formats to interested members

of the public and Defendants

21. Save Oak Hill members and supporters are predominantly people who reside and own

property within two miles of the proposed elevated sections of the Project. They include

individuals who enjoy Williamson Creek by walking, observing wildlife, and observing trees and

other plant species.

22. Save Oak Hill members and supporters would suffer adverse impacts from the Project that

would remove iconic heritage trees, harm important riparian wildlife habitat on Williamson Creek,

and take land from residents. Save Oak Hill members have been harmed by Defendants' failure to

consider other transportation options other than construction of a twelve-lane wide elevated or

excavated highway.

23. Plaintiff South Windmill Run Neighborhood Association ("SWRNA") is a voluntary

neighborhood group that represents the interests of residents in Windmill Run, 1 970s era

neighborhood located in Southwest Austin between US 290 and SH7 1, accessible from Scenic

Brook Drive. The Travis County Windmill Run park is a major public amenity located in the

neighborhood. The neighborhood is surrounded on three sides by the proposed projectabout


1,000 feet from excavated US 290 on the south; 2,500 feet from elevated SH 71 on the
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eastlnortheast; and slightly under a mile from the proposed three-level freeway interchange at the

"Y" intersection of SH 71 with US 290.

24. The neighborhood already experiences substantial "cut-through" traffic of motorists using

Scenic Brook Drive as a route to avoid driving on SH 71 and US 290, traffic which would increase

during construction of the OHP Project. Should the Project be built according to current plans, the

neighborhood would experience elevated roadway segments on SH 71 likely visible and audible

from all homes. The clearing of vegetation, land grading, and excavation of limestone rock on US

290 south of the neighborhood will impair access and create dust and noise throughout years of

construction.

25. Plaintiff Clean Water Action is a non-profit corporation working across the United States

to apply the Clean Water Act and other laws to protect the waters and aquatic habitats of our nation.

Clean Water Action has a local office in Austin, Texas and has worked actively for more than

twenty-five years to protect Barton Springs and the Edwards Aquifer. Clean Water Action has

actively participated in the public involvement processes for highway projects located in sensitive

water supply source areas. Clean Water Action has members who regularly enjoy the waters and

wildlife of Barton Springs and Lady Bird Lake downstream of Barton Creek. The conservation,

recreation, and civic interests of CWA and its members are adversely affected by the actions of

defendants to build the project, rejecting better, more protective design alternatives in violation of

NEPA and other applicable federal environmental protection laws. CWA has a history of

participation in this project through Fix 290.

26. Plaintiffs Michael and Crystal Bomer are husband and wife. They and their children

have lived in the Oak Hill area of Travis County for twenty-four years at 7629 SH 71 West, Austin,

Texas 78735, which is less than a mile from the "Y" intersection. Their custom-built family home,

constructed in 1962, sits on 1.35 wooded acres atop a hill, with ten mature oak trees of greater than

2-foot diameter. Their property is commercially zoned, and the family runs an active small

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business there with car sales. The Bomers also use the Williamson Creek greenbelt for recreational

activities.

27. The OH? Project as planned would harm the Bomers by resulting in condemnation, taking

much of their family homestead, and impacting their commercial operation both during times of

construction and permanently. Depending on the final alignment, the Project could also eliminate

the oak trees on the Bomers' property. The Bomers will also be harmed because the Project will

impact their use and enjoyment of the Williamson Creek greenbelt.

28. The Bomers have been harmed by Defendants' failure to consider any transportation

alternative other than construction of a twelve lane wide highway with elevated direct connectors

continuing for more than a mile up SH 71 and by Defendants' flawed analyses concerning the

impacts of the proposed project.

29. Plaintiff Alan Watts owns and lives on a ten-acre rural homestead with a dwelling built

in 1930, located at 6817 Thomas Springs Road, Austin, Texas 78736. Mr. Watts has lived there

since 1999. Mr. Watts bought, inhabited, and improved his property because he enjoys the natural

amenities of the surrounding Oak Hill neighborhoods and nearby rural areas. The home is located

approximately a quarter mile from Williamson Creek. Mr. Watts uses the area to study plants and

animals, to hike and recreate, and to observe oaks, other trees, flowers, birds, salamanders, and

other wildlife.

30. Mr. Watts's use and enjoyment of the natural parks and greenbeltsto hike, study and
observe plants and wildlifewill be adversely affected by the Project. Additionally, Mr. Watts

own homestead will be negatively affected by access problems he will face during construction

and water quality impacts since he gets his drinking water from a shallow domestic well in the

Edwards Aquifer.

31. Members of plaintiff groups as well as individual plaintiffs have been harmed by

Defendants' failure to consider any transportation alternative other than construction of a twelve
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lane excavated and elevated highway, and by Defendants' flawed analyses concerning the

impactsdirect, indirect and cumulativeof the proposed project.

32. Members of plaintiff groups as well as individual plaintiffs intend to continue to use and

enjoy the Williamson Creek greenbelt and other natural areas in Southwest Austin frequently and

on an ongoing basis in the future.

33. The aesthetic, recreational, scientific, educational, and procedural interests of plaintiff

groups, their members, and individual plaintiffs have been adversely affected and irreparably

injured by the process by which the Defendants approved the Project. The adverse impacts that

will result from the Defendants' process and decision will cause actual, imminent, concrete, and

particularized harm to plaintiffs.

34. Plaintiffs have a substantial interest in seeing that Defendants comply with the

requirements of NEPA and other applicable laws. The relief sought by Plaintiffs would remedy

the injuries suffered by Plaintiffs and their members.

35. Defendant Texas Department of Transportation ("TxDOT") is a state agency with

principal executive offices located at 125 East Eleventh Street, Austin, Texas, 78701, where it may

be served with citation through its Executive Director, James M. Bass. Pursuant to the December

16, 2014 Memorandum of Understanding ("MOU") executed by the Federal Highway

Administration ("FHWA") and TxDOT, TxDOT is acting in the capacity of FHWA, a federal

agency, for the transportation-related actions that are the subject of this lawsuit.

36. Defendant Capital Area Metropolitan Planning Organization ("CAMPO") is a

federally chartered and funded agency tasked with coordinating and planning regionally significant

transportation projects, including the OHP Project, as a condition of receiving federal funding for

projects in a five-county Austin metropolitan area (Bastrop, Burnet, Caidwell, Hays, Travis, and

Williamson Counties). CAMPO is a political subdivision of the State of Texas with its executive

offices located at 3300 North Interstate Highway 35, Suite 630, Austin, Texas 78705, where it may
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be served with citation through its Executive Director, Ashby Johnson. CAMPO has authority

pursuant to 23 U.S.C. § 134 and 49 u.s.c. § 5303, as implemented by 23 c.F.R. Part 450.

37. Defendant James M. Bass is the Executive Director of TxDOT. He is being sued in his

official capacity as the TxDOT Executive Director. As Executive Director, Mr. Bass is responsible

for managing the state's transportation system, and, in his official capacity, is responsible for

implementing and complying with federal law, including the federal laws implicated by this action.

38. Defendant Carlos Swonke is the Director of TxDOT's Environmental Division. In that

capacity, he is responsible for the administration, operation, and activities of TxDOT's

Environmental Division, and was responsible for reviewing and approving the Project ElS and

technical reports. Mr. Swonke is being sued in his official capacity.

39. Defendant Ashby Johnson is the Executive Director of CAMPO. He is being sued in his

official capacity as CAMPO Executive Director. As Executive Director, Mr. Johnson is able to

influence the size, shape, design, and impacts of the proposed Project, and in his official capacity,

is responsible for implementing and complying with federal law, including the federal laws

implicated by this action.

IV. LEGAL BACKGROUND

National Environmental Policy Act

40. The National Environmental Policy Act ("NEPA") (42 U.S.C. § 4321, et seq.) requires

federal agencies to assess the environmental effects of their proposed actions prior to making

decisions. NEPA established the President's Council on Environmental Quality ("CEQ"), which

issued regulations to implement NEPA (40 C.F.R. Parts 1500-1508), which are binding on all

federal agencies.

41. NEPA procedures ensure high quality environmental information is available to public

officials and citizens before decisions are made and before actions are taken, so that public officials

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make decisions that are based on understanding of environmental consequences, and take actions

that protect, restore, and enhance the environment. 40 C.F.R.1500.1(b)-(c).

42. The agency carrying out the federal action is responsible for complying with the

requirements of NEPA. In some cases, federal agencies, together with state, tribal, or local

agencies, may act as joint lead agencies. Id. § 1501.5.

43. NEPA requires federal agencies to prepare an Environmental hnpact Statement ("EIS") for

all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C.

§ 4332(C). The primary purpose of an environmental impact statement is to serve as an action-

forcing device to insure that the policies and goals defined in the Act are infused into the ongoing

programs and actions of the federal government. 40 C.F.R. § 1500.1. The EIS shall provide full

and fair discussion of significant environmental impacts and shall inform decisionmakers and the

public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance

the quality of the human environment. Id. § 1502.1.

44. NEPA and its implementing regulations require agencies to take a hard look at mitigation

measures and at the direct, indirect, and cumulative impacts of proposed actions. 42 U.S.C. §

4332(C), (E); 40 C.F.R. § 1502.15, 1502.16, 1508.7, 1508.8 1508.20.

45. The alternatives analysis is the heart of the EIS, and should sharply define the issues and

provide a clear basis for choice among options by the decisionmaker and the public. 40 C.F.R. §

1502.14. Importantly, Agencies shall not commit resources prejudicing selection of alternatives

before making a final decision. Id. § 1502.2(f). The ElS shall include discussions of the

environmental effects of alternatives including the proposed action, with the alternatives analysis

comparing the effects and discussing mitigation. Id. § 1502.16(d), (h).

46. The scope of an agency's alternatives analysis is derived from the underlying purpose and

need to which the agency is responding in proposing the alternatives. Id. § 1502.13. An agency

may not define a project's purpose and need in unreasonably narrow terms that preordain the

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outcome of an alternatives analysis in order to justify decisions already made. See Id. § 1502.2(g).

The existence of a viable but unexamined alternative that would accomplish the general goal of

the action renders an EIS inadequate.

47. NEPA regulations also direct that agencies should, to the fullest extent possible,

"encourage and facilitate public involvement" in the NEPA process. Id. § 1500.2(d).

Section 4(1)

48. Section 4(f) of the Department of Transportation Act of 1966 prohibits the use of land of

significant publicly owned public parks, recreation areas, wildlife and waterfowl refuges, and land

of a historic site for transportation projects unless there is no feasible and prudent avoidance

alternative and that all possible planning to minimize harm has occurred. 49 U.S.C. § 303; 23

U.S.C. § 138; see also 23 C.F.R. § 774.

Administrative Procedures Act

49. The Administrative Procedures Act ("APA") (5 U.S.C. § 500, etseq.) provides for judicial

review of final agency actions. Under the APA, courts must "hold unlawful and set aside agency

action, findings, and conclusions" found to be "arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

V. FACTS

50. The subject of this action is the proposed reconstruction of the intersection of U.S.

Highway 290 West and State Highway 71 West, known by project proponents as the "Oak Hill

Parkway Project" or the "OHP Project." The intersection and surrounding area is also known by

local residents as "the Y at Oak Hill" or simply the "Y." As defined by the action agency, the OMP

Project would extend from State Loop 1 ("MoPac") to west of Ranch-to-Market Road 1826 and

from US 290 to Silvermine Drive on State Highway 71 West.

The Unique Nature of the "Y"

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51. The Y at Oak Hill is an area of Central Texas rich in environmental, historic, and cultural

resources. In this area, US 290 and SH 71 traverse the recharge and contributing zones of the most

environmentally-sensitive aquifer in the State of Texas: the Barton Springs segment of the

Edwards Aquifer. The Edwards Aquifer is designated as a "sole-source" drinking water aquifer

under the Safe Drinking Water Act, 42 U.S.C. 300(f)-300(j)(6). The karst aquifer is recharged

through faults, fractures, caves and other small recharge pathways, several of which were found in

the project area, and which make the aquifer highly susceptible to pollution from construction and

operation of the highway Project, particularly in light of planned excavation for depressed lanes.

Current science indicates that water from the section of Williamson Creek in the project area

recharges the Barton Springs Edwards Aquifer and reaches Cold Springs and Barton Springs, an

important recreational and cultural amenity, in 1-2 days.

52. Several major watersheds are intersected by the Project Area, including Williamson Creek,

and tributaries, which will be crossed by the Project. Approximately two miles of the proposed

Project are located within the FEMA designated 100-year floodplain of Williamson Creek and its

tributaries. A recent National Weather Service historical rainfall study, called Atlas-14, shows that

Central Texas is more likely to experience larger storms than previously thought, meaning that

severe flooding is also more likely. Until floodplain maps can be redrawn, the City of Austin is

proposing to change City regulations out of concern for public safety and welfare. The City of

Austin is proposing that an interim 100-year floodplain be based on the current 500-year

floodplain, meaning the new floodplain regulations will apply to even more properties. The Project

EIS does not consider the results of Atlas-14, but it does propose adding approximately 74 acres

of impervious cover.

53. The Project area also contains dozens, if not hundreds, of large and valuable trees that will

be removed or negatively impacted from construction and operation of the highway Project.

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Additionally, many of the trees are historic, and other historic places exist in the Project area and

will be negatively impacted by the Project. In fact, more than 50 acres have yet to be surveyed.

54. Williamson Creek Greenbelt West, a City of Austin owned park, is 318.78 acres and begins

at the Project boundary near 290 and extends eastward to Mopoc (Loop 1). It is located

immediately downstream of the project and would suffer water quality and other ecological

impacts. The project design prevents the expansion of this park into the Project area, into public

land areas currently already being used informally for park uses.

55. A historic preservation expert concluded that nearly two dozen historic resources are

vulnerable to damage or total destruction by the project. Among these resources are groves of

mature trees present since before the Oak Hill community of Anglo settlers began more than 140

years ago, historic buildings, a cemetery with grave markers of the original settlers, and the

Convict Hill bluffs where prisoners quarried limestone for the original Texas state capitol building.

The bluffs would be totally obscured by the double decker roadway.

The Oak Hill Parkway Project

56. The OHP Project is proposed by TxDOT as a complete reconstruction of existing highways

in the Oak Hill area. Altogether, six new controlled access freeway lanes will run a distance of 3.9

miles on US 290, and an additional six lanes of adjacent frontage roads throughout the Project

length. The Project will result in twelve main lanes in total, and with auxiliary lanes and a full

shoulder, the width of the Project will be the equivalent of up to fourteen lanes wide.

57. The direct connector ramps connecting US 290 and SH 70, will be elevated for a distance

of 1.1 miles, reaching heights of approximately 30 feet above ground. A 2.65-mile stretch of US

290 will be depressed 25 feet below existing ground to provide for grade-separated intersections

to be constructed at Convict Hill Road, RM 1826, Scenic Brook Drive, and Circle Drive

(Southview Road). Executing the plan for depressed lanes would require enormous earth

movingapproximately 2 million cubic yards, or 52 million cubic feet. See DEIS, p. 35. This will

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cause adverse impacts to the karst aquifer and groundwater, as discussed above, but dust and

particulate matter will also impact neighbors, drivers, and others in the area during construction.

Procedural History of the Oak Hill Parkway Project

58. The Final Environmental Impact Statement ("FEIS") was approved and the Record of

Decision ("ROD") was issued on December 21, 2018. Notice of Final Agency Action was

published in the Federal Register on February 4, 2019 and March 1, 2019. See 84 Fed. Reg. 1528;

84 Fed. Reg. 7162. This outcome is the result of more than thirty years.

59. In 1987, Defendant TxDOT acquired the right-of-way ("ROW") for an expanded US 290

I SH 71 project. Although published prior to initiating any project scoping or an EIS, the 1987

ROW map depicts an approximate location and outline of proposed future freeway main lanes and

frontage roads that are nearly identical to the schematics accompanying the 2018 FEIS/ROD.

60. Following the 1987 ROW acquisition, Defendant TxDOT initiated a federal EIS process

for US 290 culminating in a ROD issued on August 22, 1988. The Oak Hill segment of US 290

was only a portion of a larger overall project (called the Ben White freeway), which is today 90

percent complete or under construction.

61. As a two-dimensional rendering, 1987 ROW illustration, the 1989 EIS schematic, and the

2018 EIS schematic are all quite similar width, with virtually the same placement and number of

lanes. This similarity suggests that Defendant TxDOT has not in thirty years genuinely considered

any highway design other than a twelve lane wide concept that it is presently advancing.

62. Incidentally, the April 12, 1987 Draft ElS (sections 2.1.4 through 2.1.6) rejected an

"elevated roadway concept" through Oak Hill as a measure to reduce ROW needs. Adding a

lengthy elevated section as in the current version could have made this a new project, therefore

triggering a new supplemental EIS.

63. In the years following the 1988 FEIS/ROD, Defendant TxDOT claimed lack of sufficient

funds to build the westernmost part of the Ben White freeway project in Oak Hill. In 2004,

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Defendant TxDOT announced conversion of the Oak Hill Parkway Project to a tolled roadway

project, as part of a controversial, now defunct, plan to change several existing free roads to tolled

roads.

64. TxDOT's own actions changing this to a tolled project made this a substantively different

project than the one permitted by the 1989 ROD. Also, substantial changes have occurred since

1989 in the environment of the project (new urban growth and development; local ordinances to

protect the Edwards Aquifer; endangered species listings; near non-attainment status in regional

air quality under the Clean Air Act; others). Due to these numerous major changes, both in the

Project description itself and in the Project's environment, a supplement to the EIS was ordered

by the FHWA on November 30, 2007.

65. A Notice of Intent to prepare an EIS was published in October 2012. And then Defendant

CAMPO, at the request of the other Defendant agencies, placed a description of the Project in its

federally required Long-Range (20-year) Plan (called the Regional Transportation Plan or "RTP")

on May 11, 2015, and amended its Transportation Improvement Program (TIP, a federal

requirement prior to funding) on July 6, 2016, so that the US 290/SH 71 project was a tolled

freeway with frontage roads. This description constrained the consideration of options alternatives

analysis in NEPA planning.

66. With a sudden shift in political winds, in March 2018, the tolled project was converted to

a non-tolled project. Both the RTP and TIP were modified on July 18, 2018, to reflect the non-

tolled facility, modifications that were approved by CAMPO on August 13, 2018. A new Draft

EIS was issued with initially only 45 days to comment. The Draft EIS (dated April 2018) was

published on May 4, 2018, and evaluated two "Build Alternatives" and identified Alternative A as

the "Preferred Alternative." A public hearing for the DEIS was held on May 24, 2018. The ROD

was issued in December 2018.

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67. No substantial change in the design occurred from the tolled option to the non-tolled

option; in fact, no substantial change has occurred in design since 1986, despite the changes in

operation (from non-tolled to tolled and back again) and greatly changed social, environmental

and regulatory circumstances. Despite more than thirty years of effort, TxDOT's NEPA process is

flawed, and as a result, has produced a flawed EIS that did not consider reasonable alternatives nor

the true scope of direct, indirect, and cumulative impacts of the proposed Project.

TxDOT's Purpose and Need was Driven by Flawed Analysis

68. An EIS must discuss the purpose and need for the project. 40 C.F.R. § 1502.13. Although

agencies have discretion in defining the purpose and need, an agency cannot define its objectives

in unreasonably narrow terms such that the outcome is preordained. Id.

69. As stated in the FEIS, the OHP Project has three main purposes: improve mobility and

operational efficiency; facilitate long-term congestion management in the corridor by

accommodating the movement of people and goods via multiple modes of travel; and improve

safety and emergency response. FEIS at 12. The OHP Project needs are listed as follows: traffic

congestion related to population growth; crashes on US 290/SH 71 West; lost time for motorists;

lack of reliable connectivity in the roadway system; and unreliable routes for transit and emergency

vehicles. Id.

70. The Project's traffic analysis, while perhaps not deliberately nor maliciously skewed, is

nonetheless plainly deficient. Actual data on traffic growth collected by TxDOT contradicts

TxDOT's own projections of future travel in 2040 which forms the central rationale for this

Project's configuration and timing. The actual data suggests at current growth rates the proposed

capacity will still not be needed by the design year. TxDOT blames the gap on CAMPO ' s estimates

of projected average daily travel demand in 2040. The historic data shows that CAMPO and

TxDOT have greatly overestimated travel demand, flawed data that has been used to support an

inherently flawed Purpose and Needbut that is not the only flaw.

17
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 18 of 30
71. In its Purpose and Need Section, the FEIS acknowledges that CAMPO's 2040 travel

demand model was modified to reflect the proposed non-tolled facility, but only used to compare

the non-tolled version of the Preferred Alternative to the previous tolled version of the same

Preferred Alternative. FEIS at 11. This was used to support the conclusion that "both mainlanes

and frontage roads are required." However, a preferred design alternative with frontage roads could

have been a direct result of the requirement to incorporate tolls. Thus, the need for a non-tolled

design was improperly narrow (to one in which frontage roads are the preordained method for

adding additional capacity), thereby preordaining an outcome to one with mainlanes and frontage

roads. This flaw in the "Need" means a true "parkway" (with no frontage roads) design was never

considered as one that could meet the Project's Purpose and Need.

72. Furthermore, tolling was assumed in developing the Project's future traffic scenarios. Not

tolling tends to increase travel demand. This may, conversely to the past projections, cause an

understatement of travel demand. Whether the projected traffic trends proves in time to be either

under- or over- estimated, the intended public purpose is thwarted. By converting from a tolled

project to a non-tolled project after the technical documents were prepared, the Purpose and Need

was shaped by data that is now rendered arbitrary.

73. Without incorporating historic and precise data in their modeling and analyses, TxDOT's

Purpose and Need is inherently flawed. A flawed Purpose and Need will, even with good

intentions, skew the alternatives analysis and the impacts analysis, the two fundamental principles

of a dependable NEPA process.

TxDOT Failed to Supplement the EIS

74. Under NEPA, an agency must prepare supplements to either draft or final environmental

impact statements if the agency makes substantial changes in the proposed action that are relevant

to environmental concerns, or there are significant new circumstances or information relevant to

environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. § 1502.9(c).

18
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 19 of 30
75. The DEIS was prepared based on the assumption that the Project would be a tolled project.

However, after the Preferred Alternative was selected, but before the FEIS was complete, the

Project was converted to a non-tolled project. And in fact, the FEIS (page 2), acknowledges that

the CAMPO 2040 travel demand model for the project was modified to reflect the proposed non-

tolled facility. And while the results, which Plaintiffs maintain are flawed, may indicate an increase

of less than 1 percent in traffic on the main lanes and frontage roads in the corridor, TxDOT

provides no supporting analysis for whether the change from a tolled to a non-tolled project would

impact the alternatives analysis, except to say that "[f]rontage roads would still be required to

adequately handle the projected corridor travel demand. . . and to maintain access for adjacent

properties."

76. Texas state law prohibits adding tolls to existing, taxpayer-funded roadways. Tex. Transp.

Code Section 228.201. While many toll projects are to be constructed in existing highway

corridors, the amount of existing capacity (i.e., non-tolled lanes) must be preserved. Id. This

restriction inherently limits the design of tolled road projects that follow existing freeway

corridors, by requiring that non-tolled lanes be preserved where tolled-lanes are added, potentially

affecting the number of lanes constructed and the design needed to provide separation of and

access to both the non-tolled and tolled lanes. Therefore, a tolled design could mean more

impervious cover, more stream crossings, a larger ROW, an elevated lane, or an excavated lane
all of which are relevant to environmental concerns and bear on the impacts of a proposed action.

77. Yet, TxDOT dismissed the change from tolled to non-tolled with merely one sentence in

which it concluded that "changing from a tolled to a non-tolled facility would result in no change

in the design ofthe Preferred Alternative." Here, TxDOT missed the mark. NEPA required TxDOT

to consider whether the differences would result in a change in the selection of the Preferred
Alternative. Because the technical reports underlying the DEIS and FEIS, and the analysis of the

19
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 20 of 30
impacts and reasonable alternatives pertain only to a tolled project, rather than the non-tolled

project now planned for construction, a supplemental EIS was required under NEPA.

78. TxDOT has also continued to make significant changes to the project after the FEIS was

issued. These include redoing the flood analysis based on Atlas 14 rainfall data and resulting design

changes, removing lanes without re-doing traffic analysis or explanation for why lanes were

removed, and re-siting the shared use path. Together, these are significant changes to the project

that should have been included in the FEIS for public review.

79. TxDOT failed to complete a supplemental EIS in response to new information and new

circumstances. Therefore, the FEIS is deficient and TxDOT's NEPA process is flawed for not

considering all reasonable alternative or significant environmental impacts.

TxDOT's Alternatives Analysis is Flawed

80. While NEPA does not force selection of any given design, NEPA does mandate that

reasonable alternatives to the proposed action be rigorously explored and objectively evaluated.

42 U.S.C. 4332(C)(iii); 40 C.F.R. § 1502.14(a).

81. The record shows that Defendants excluded consideration of a feasible and reasonable

"parkway" alternative for a grade-level, non-tolled, six- to eight-lane freeway without continuous

frontage roads.

82. Two Austin freeway segments actually existing and operational were designated as

parkways by CAMPO during the EIS study period. A December 13, 2001 Texas Transportation

Commission Minute Order directs TxDOT to omit frontage roads from new freeway construction

wherever it made financial sense. Therefore, it was reasonable for Defendant agency TxDOT to

consider a grade-level alternative without continuous frontage roads in Oak Hill.

83. Furthermore, by studying onlyatolled option, TxDOT's alternative analysis was inherently

limited to alternatives that would both meet their Purpose and Need and comply with Texas state

law preserving non-tolled capacity in existing highway corridors. See Tex. Transp. Code Section

20
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 21 of 30
228.201. When converting to a non-tolled designi.e. some design limitations were removed
TxDOT declined to supplement the EIS. This means TxDOT failed to consider a multitude of

reasonable alternatives.

84. Therefore, the alternatives analysis was not sufficient to permit reasoned choice among

different courses of action: the two "build" options selected for study are not sufficiently different

from one another to be meaningfully distinguished as a choice. For example, the planned

excavationwhich will be incredibly destructive to the karst environmentwas a feature of all

"build" alternatives, despite thirty years of prior plans that did not feature excavation. Excluding

a non-depressed road alignment was arbitrary and capricious. As was excluding a genuine parkway

alternative, or any alternative with at-grade main lanes rather than elevation or depression.

TxDOT's Impacts Analysis is Deficient

85. NEPA establishes only the necessity for a "hard look" at the impacts of proposed actions.

FHWA, beginning on Dec. 16, 2014, assigned NEPA compliance to the state agency TxDOT on

the condition that they impartially apply federal laws in EIS preparation and approval. Plaintiffs

question the success of this NEPA delegation of authority due to the inherent conflict of interest

in TxDOT reviewing its own work product, with an evident lack of arms-length administration

and enforcement of NEPA. NEPA's application in practice has been progressively hollowed out

both by cynical agency maneuvers and in our view, an excessive deference to the agency

expertise on the part of the courts in general.

86. TxDOT did not meet the criteria for an "objective hard look" at the Project's impacts, the

following being among the economic, social, and environmental impacts associated with the

proposed Project that were inadequately or incompletely analyzed by the EIS. The largest

example of the flawed analysis, which applies to all impacts (i.e. screening factors) is that none

of the scale of the reported impacts were compared with the same impacts for the alternatives,

which were unreasonably excluded from analysis.

21
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 22 of 30
Surface Water Quality

87. Damage to water quality in Williamson Creek due to increases in stormwater runoff was

not adequately analyzed. Pollutant loading was not reported for any substance except total

suspended solids (TSS). A typical practitioners' guide for NEPA compliance notes other typical

parameters covered in an EIS: dissolved oxygen, temperature, bacteria counts, total dissolved

solids, and the Clean Water Act requirements for stream water quality "nondegradation." See

Bregman and Marsh, Environmental Impact Statements, 1991. Impacts to surface water quality

during construction, and following construction, from doubling impervious paved area within

Project ROW was not considered, nor was effective mitigation proposed.

Floodplains and Flood Risk

88. Executive Order 11988 on Floodplain Management (May 25, 1977) requires that

agencies evaluate the actions in floodplains to avoid adverse effects associated with their direct

or indirect development. Atlas 14 hydrological modeling will necessarily alter locations, height,

and bulk of highway structures, as well as the number and locations of properties in harm's way,

forcing change to the adopted design. Alternative roadway designs that would reduce impervious

cover relative to those that were selected also deserve a hard look for the flood avoidance

reasons, as well as Reductions in impervious cover deserve a hard look for flood reasons as

well as water quality.

Groundwater

89. As previously discussed, the Project area sits on top of the Edwards aquifer that yields

drinking water for domestic wells, refreshes Barton Springs pool in Austin's Zilker Park, and

supplies habitat for endangered species. Since the aquifer gets recharged within the Project area

and downstream of it, groundwater quality will be affected by surface water quality. The volume

of groundwater recharge to the underground aquifer, by expert consensus, is affected by paving

22
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 23 of 30
over cave openings, sinkholes, fissures, etc. No methodology or studies are presented to estimate

the lost recharge for this project nor suggest mitigation to offset it.

Noise and Visual Impacts

90. Elevated highway projects like TxDOT's are well known to sharply increase noise levels

in the environment, impairing human health, quality of life, and property value. Under FHWA

regulations, a specific abatement measure that highway agencies must consider is the

"[a]lteration of horizontal and vertical alignments." 23 C.F.R. § 772.11(c), 772. 13(c)(2). The

1.1 miles of elevated freeway lanes will cause an increase in noise and negative visual impacts to

neighborhoods, parks, and identified historic and culturally significant places. An available but

ignored alternative and mitigation step would be to build a ground level parkway instead.

Social and Economic Impacts

91. NEPA calls for estimation and reporting of "social and economic" impacts, as well as

impacts to the natural environment. Official project cost estimates by TxDOT, CTRMA, and

CAMPO varied widely from $400 million to $750 million over the last two years. If excessive

spending occurs, other CAMPO priority projectslike Interstate 35 in Austinget further

delayed. No justification or comparisons of opportunity costs for other priority projects under

constrained budget conditions ever gets presented in the EIS.

92. Further access to neighborhoods, retail stores, and other commercial business will be

impaired, both during construction, but also as compared to the current condition with free left

turns and driveway intersections along the length of the area. Additional noise, dust, and travel

delays experienced during construction will occur. While there is acknowledgment of some

effects, there is no reporting of how it might be avoided.

Subsurface and Dust

23
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 24 of 30
93. Excavating into the limestone aquifer is expected to produce 52 million cubic feet of rock

rubble and pulverized dust to be hauled away. This action will likely directly damage

groundwater in the Edwards and Trinity aquifers. These impacts are not itemized or estimated.

Trees and Parks

94. The Project will remove 287 mature trees more than 100 years old and over 19 inches in

diameter, and will clear of 80 acres of vegetation. The Project will impair over 20 identified

historic sites within or adjacent to Project ROW. Two groves of heritage trees were considered

eligible for inclusion in the National Historic Register by an independent expertbut were not

mentioned in the EIS as being possibly eligible. Additionally, a City of Austin park unitpart of

the Williamson Creek greenbeltdirectly adjoins the Project area and was not noted for the

Project's park impacts analysis.

Traffic

95. Increased congestion-caused travel delays during the construction period can be expected

but was not quantified or analyzed. The final EIS fails to note pending relocation of Austin

Community College (ACC) Pinnacle campus and the HEB grocery store at the "Y," both major

traffic generators within the corridor. The EIS also failed to report the traffic impacts of the

various Project alternatives for any roadway other than US 290 and SH 71. Frontage roads can

supply access, but reduce capacity when compared to using the same space for additional

freeway main lanes. This access vs mobility trade-off was not discussed in the ElS.

TxDOT Violated Section 4(1)

96. Section 4(f) of the Department of Transportation Act of 1966 prohibits the use of land of

significant publicly owned public parks, recreation areas, wildlife and waterfowl refuges, and land

of a historic site for transportation projects unless there is no feasible and prudent avoidance

alternative and that all possible planning to minimize harm has occurred. See 23 C.F.R. § 774.

24
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 25 of 30
97. Under the 2014 MOU, TxDOT has been delegated the duty of complying with Section 4(f)

from FHWA, just as it does for NEPA purposes. However, in the ROD, TxDOT states that Section

4(f) protected resources within the Project area were evaluated and found not to have any bearing

on the Project; as such, a Section 4(1) analysis was not conducted. The DEIS dismisses the

possibility that of 50 historic-age resources documented in the area, four of which and a historic

district are eligible for listing on the National Register of Historic Places, could be impacted by

the Project. The FEIS lacks any analysis and is conclusory only: "The proposed project would

have no direct effects and no adverse indirect effects on any of the NRHP-eligible properties or on

the historic district." DEIS, ES-I 8. The extent of TxDOT's circular reasoning concludes: "Because

the proposed project would pose no direct or adverse indirect effects to the characteristics for

which each NRHP-eligible resource is significant, [Section 4(f) does] not apply to the proposed

project." Id.

98. The types of resources protected by Section 4(1) are found in the Project area and will be

"used" by the Project. Under Section 4(1), a "use" of Section 4(f) property occurs when land is

permanently incorporated, temporary occupied, or when there is a "constructive use." 23 C.F.R. §

774.17.

99. A constructive use occurs when the transportation project does not incorporate land from

a Section 4(f) property, but the project's proximity impacts are so severe that the protected

activities, features, or attributes that qua1if' the property for protection under Section 4(f) are

substantially impaired. id. § 774.15. Substantial impairment occurs only when the protected

activities, features, or attributes of the property are substantially diminished. Id. If the project

results in a constructive use of a nearby Section 4(1) property, the lead agency must evaluate that

use. Id.

100. The Williamson Creek greenbelt is a publicly-owned City of Austin ("COA") park located

immediately adjacent to (sharing a property boundary with) the Project. The dye-tracing studies

25
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 26 of 30
established that recharged groundwater from the Project area itself, and in the COA greenbelt

immediately downstream of the Project, can appear at Barton Springs within as little as a day's

time. The COA property is preserved for recharge as one condition of its ESA incidental take

incidental take (section 10) permit for the Barton Springs salamander. Additionally, if a wildlife

management area functions for the protection of a species, Section 4(f) applies. See Practical Guide

to Environmental Impact Assessment, Marriott, B. (1997). That makes it a significant publicly

owned public park deserved of protection under Section 4(f).

101. Baseball fields open to the public and maintained by the Oak Hill Optimists Club share

boundaries with both the Project and the COA Williamson Creek greenbelt. An Austin ISD public

school with playgrounds sits within 200 feet of the Project's northeast boundary, adjacent to the

proposed elevated segment.

102. There is also a roadside State-owned park and picnic area with an Oak Hill state historic

marker located within the Project ROW which has been listed on maps and in travel guidebooks

at the same location for decades. It maybe small, but it is a significant property deserved of Section

4(f) protections. Additionally, other sites that are eligible for the National Historic Register sit

directly in the ROW of the Project, including the grove of historic trees.

103. Together, the elements of the OHP Project, will impose significant noise, light, visual, and

other adverse impacts on these protected 4(f) properties, to such an extent that they will constitute

a constructive use of the properties. The elevated ramps will project noise. The proposed sound

barriers used to mitigate noise and visual blight from the Project will, if built, only minimally

reduce noise while creating visual blight for both sides of the sound barrier.

TxDOT Violated the National Historic Preservation Act

104. Section 106 of the National Historic Preservation Act ("NHPA") (54 U.S.C. § 300101, et

seq.) requires with any project requiring threshold federal action, the involved agencies must

26
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 27 of 30
account for the effects of their proposed project on historic properties. The Advisory Council on

Historic Preservation has promulgated regulations at 36 C.F.R. Part 800.

105. The affected property must either be listed or potentially eligiblefor listing in the National

Register of Historic Places. 54 U.S.C. § 300308. The National Register lists buildings, structures,

objects, districts, and sites (including landscapes, which make up roughly ten percent of Register

sites). Id.; 36 C.F.R. § 800.4.

106. The section 106 process seeks to accommodate historic preservation concerns

through consultation between the agency official and other parties, commencing at the early stages

of project planning, with the goal being that consultation will identify historic properties

potentially affected by the project, assess its effects, and seek ways to avoid, minimize or mitigate

any adverse effects on historic properties. 30 C.F.R. 800.1(a). The agency official shall ensure that

the section 106 process is initiated early in the undertaking's planning, so that a broad range of

alternatives may be considered during the planning process for the project. Id. § 800.1(c).

107. More than 50 acres have yet to be surveyed. So, TxDOT did not complete the Section 106

process before selecting the preferred alternative, meaning a broad range of alternatives was not

considered, nor were alternatives that would include ways to avoid, minimize, or mitigate adverse

effects on historic properties.

108. TxDOT also has the duty under NEPA not to overlook any National Register "eligible" or

"possibly eligible" properties for survey, study, and mention in the FEIS. TxDOT overlooked the

presence of several Register eligible properties according to an independent expert, including

groves of heritage trees directly in the path of proposed construction being slated for permanent

physical removal.

109. Therefore, TxDOT failed to conduct NHPA consultation as required under Section 106.

VI. FIRST CLAIM FOR RELIEF

(Violations of NEPA)

27
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 28 of 30
110. Plaintiffs incorporate each and every allegation set forth above.

111. NEPA prohibits TxDOT from taking any action concerning the Project that would "[h]ave

an adverse environmental impact" or "[l]imit the choice of reasonable alternatives" before the

agency has issued a record of decision. 40 C.F.R. § 1506.1(a).

112. Without an analysis of the cumulative impacts of, and alternatives to, the entire program,

the defendant agencies selection of the Preferred Alternative is arbitrary, capricious, an abuse of

discretion, and not in accordance with the procedures required by NEPA. 5 U.S.C. § 706(2).

VII. SECOND CLAIM FOR RELIEF

(Violations of Section 4(1))

113. Plaintiffs incorporate each and every allegation set forth above.

114. Section 4(1) prohibits the use of land of significant publicly owned public parks, recreation

areas, wildlife and waterfowl refuges, and land of a historic site for transportation projects unless

there is no feasible and prudent avoidance alternative and that all possible planning to minimize

harm has occurred. 23 C.F.R. § 774.

115. The Defendant's Oak Hill Parkway violates Section 4(1) by using properties protected by

Section 4(f) without demonstrating any attempt to avoidance the use or minimize harm. TxDOT's

selection of the Preferred Alternative without considering protective measures for 4(1) properties,

is arbitrary, capricious, an abuse of discretion, not in accordance with the procedures required by

the Section 4(f). 5 U.S.C. § 706(2).

VIII. THIRD CLAIM FOR RELIEF

(Violations of NHPA)

116. Plaintiffs incorporate each and every allegation set forth above.

117. TxDOT violated Section 106 of NHPA, which requires an agency engaged in an

undertaking to complete the necessary consultation process so that it may consider all eligible or

possible eligible historic sites for survey, study, or mention in the FEIS and prior to authorizing

28
Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 29 of 30
an undertaking. 54 U.S.C. § 300308, 306108; see 36 C.F.R. § 800.1(c). TxDOT's selection of

the Preferred Alternative before completing the required consultation is arbitrary, capricious, an

abuse of discretion, not in accordance with the NHPA, and without observance of procedures

required by the NHPA. 5 u.s.c. § 706(2).

IX. PRAYER

WHEREFORE, Plaintiffs respectfully ask this Court to:

A. Issue a declaratory judgment that Defendants have violated NEPA and the APA by failing

to undertake a full environmental impact study, including the failure to supplement the ElS,

the failure to conduct an adequate alternatives analysis, and the failure to consider all

impacts of the Project, as required by NEPA;

B. Issue a declaratory judgement that Defendants have violated Section 4(f) in their pursuit of

the Oak Hill Parkway Project;

C. Issue a declaratory jucigement that Defendants have violated the National Historic

Preservation Act in their pursuit of the Oak Hill Parkway Project;

D. Grant appropriate injunctive relief to prohibit Defendants from undertaking any

construction activities in pursuit of the Oak Hill Parkway Project, until Defendants have

performed a comprehensive environmental impact assessment in compliance with NEPA;

E. Grant appropriate injunctive relief to prohibit Defendants from undertaking any

construction activities in pursuit of the Oak Hill Parkway Project, until Defendants have

performed an analysis in compliance with Section 4(f);

F. Grant appropriate injunctive relief to prohibit Defendants from undertaking any

construction activities in pursuit of the Oak Hill Parkway Project, until Defendants have

completed the Section 106 process in compliance with the NHPA; and

G. Grant such other relief as this Court deems appropriate.


Case 1:19-cv-00761-RP Document 1 Filed 07/29/19 Page 30 of 30
Respectfully submitted on July 29, 2019.

Submitted,

Clark Hancock, President


Save Barton Creek Association
P0 Box 5923, Austin, TX 78763
(512)507-1627; sbca@savebartoncreek.org

Alan Watts, for


Self and Save Oak Hill
SaveOakHill.org

-..--

David Foster, State Director


Clean Water Action
Cleanwateraction.org

Carol Cespedes for


Fix 290, and South Windmill Run
Fix290.org
Case 1:19-cv-00761-RP Document 1-1 Filed 07/29/19 Page 1 of 2

JS 44 (Rev. 06/17) CIVIL COVER SHEET


The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)

I. (a) PLAINTIFFS DEFENDANTS

Save Barton Creek Association et al Texas Department of Transportation et


(b) County of Residence of First Listed Plaintiff §thnty of Residence of First Listed Defendant
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NOTE: INLAND CONDEMNATION CASES, USE THE LOCATION OF
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II. BASIS OF JURISDICTION (Place anX" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box for Plaintiff
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C] 1 U.S. Government 3 Federal Question PTF DEF PTF DEF
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of Business In This Slate

C] 2 U.S.Governxnent C] 4 Diversity CitizenofAnotherState C] 2 C] 2 IncorporatedandPrincipalPlace Cl 5 C] 5

Defendant (Indicate Citizenship ofParties in Item III) of Business In Another State

Citizen or Subject of a C] 3 C] 3 Foreign Nation Cl 6 C] 6


Foreign Country
iv ci i uix jr ui I ri-lace an A in one aox only) LI1K nero sos. INOLUIC U U5L LOUC iJeSCripLsoLsS.
ffHWI. I

C] 110 Insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 USC 158 C] 375 False Claims Act
0 120 Marine C] 310 Airplane C] 365 Personal Injury - of Property 21 USC 881 C] 423 Withdrawal C] 376 Qui Tam (31 USC

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1 Original Cl 2 Removed from Cl 3 Remanded from C] 4 Reinstated or C] S Transferred from C] 6 Multidistrict C] 8 Multidistrict
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Cite the U.S. Civil Statute under which you are filing (Do not cite jurisd.i ctional statutes unless diversity):
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APPLYING IF? JUDGE P ] tman MAG. JUDGE
Case 1:19-cv-00761-RP Document 1-1 Filed 07/29/19 Page 2 of 2

DUPLICATE

Court Name: TEXAS WESTERN


Division: 1
Receipt Number: 100036473
Cashier ID: ciames
Transaction Date: 07/29/2019
Payer Name: SAVE BARTON CREEK ASSOCIATION

CIVIL FILING FEE


For: SAVE BARTON CREEK ASSOCIATION
Amount: $400.00

PAPER CHECK
Check/Money Order Num: 1275
Amt Tendered: $400.00

Total Due: $400.00


Total Tendered: $400.00
Change Amt: $0.00

1:19-CV-761-RP SAVE BARTON CREEK


ASSOCIATION ET AL V. TEXAS
DEPARTMENT OF TRANSPORTATION ET AL
CIVIL FILING FEE