Save Barton Creek Assoc, Et Al Vs TxDOT, CAMPO Et Al

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.

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
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
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
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
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 overestimated, 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
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
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
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
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
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
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
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
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
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
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))
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)
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
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
performed an analysis in compliance with Section 4(f);
F. Grant appropriate injunctive relief to prohibit Defendants from undertaking any
completed the Section 106 process in compliance with the NHPA; and
G. Grant such other relief as this Court deems appropriate.

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
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I. (a) PLAINTIFFS DEFENDANTS
Save Barton Creek Association et al Texas Department of Transportation et

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Case 1:19-cv-00761-RP Document 1-1 Filed 07/29/19 Page 2 of 2
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1:19-CV-761-RP SAVE BARTON CREEK

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

Save Barton Creek Assoc, Et Al Vs TxDOT, CAMPO Et Al

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

UNITED STATES DISTRICT COURT

James M. Bass, in his official capacity as

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

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

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

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

distance of approximately 1.31 miles.

landscape and within the Project ROW.

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

II. JURISDICTION & VENUE

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

Impact Statement and have exhausted all available administrative remedies.

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

conservation goals and preserve natural resources for future generations.

Parkway Project in its presently proposed form.

and transportation options that promote environmental integrity and conservation.

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

eliminating unnecessary access roads.

and design in their backyards.

hundred years old or more than 19 inches in circumference.

of the public and Defendants

other plant species.

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

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

"Y" intersection of SH 71 with US 290.

participation in this project through Fix 290.

impact their use and enjoyment of the Williamson Creek greenbelt.

impacts of the proposed project.

impactsdirect, indirect and cumulativeof the proposed project.

on an ongoing basis in the future.

particularized harm to plaintiffs.

the injuries suffered by Plaintiffs and their members.

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

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

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

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

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

implicated by this action.

IV. LEGAL BACKGROUND

National Environmental Policy Act

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

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

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

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

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

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

the action renders an EIS inadequate.

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

Administrative Procedures Act

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).

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

The Unique Nature of the "Y"

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

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

The Oak Hill Parkway Project

Procedural History of the Oak Hill Parkway Project

percent complete or under construction.

triggering a new supplemental EIS.

by the FHWA on November 30, 2007.

analysis in NEPA planning.

was issued in December 2018.