Today U.S. District Judge Lee Yeakel pdf issued an order (489 KB) denying a request from SOS Alliance, former Austin mayors Carole Keeton and Frank Cooksey, Save Barton Creek Assn, and others for a preliminary injunction to stop the clearing of the proposed SH 45 SW right-of-way. The court ruling means TxDOT and its toll road partner, CTRMA, are free to begin clearing the right of way, which crosses the Barton Springs Edwards Aquifer recharge zone and includes at least 58 acres of mature oak/Ashe juniper woodland habitat for the endangered Golden-cheeked warbler. TxDOT and CTRMA have said they intend to initiate the land clearing on or about November 8th.
TxDOT and CTRMA, if they go forward as planned, still face potential liability under the Endangered Species Act for unauthorized harm to the endangered warbler and the endangered Barton Springs salamander and Austin blind salamander.
The order is a preliminary ruling in the case. A final hearing on the case, likely in December or January, will take place before major construction begins in the spring.
Plaintiffs are of course disappointed in the court's decision. We respectfully disagree with the court's initial application of the National Environmental Policy Act and its implementing rules to the facts in this case. As set out in our brief in support of preliminary injunction, SH 45 SW, Mopac Intersections, and Mopac South constitute a single course of action, with overlapping and cumulative impacts on Barton Springs, the aquifer, listed endangered species, and downstream floodplains, among other resources. Studying them separately, as TxDOT and CTRMA have done, violates NEPA's mandate to consider alternatives and impacts holistically rather than piecemeal.
While this is a significant setback, the case, and parallel efforts to keep Mopac from being converted into a second Interstate 35 through Austin and on top of Texas' most vulnerable aquifer will continue. Plaintiffs will pursue this case to conclusion.
Thank you to everyone who has helped thus far - and please continue supporting this important effort to keep Mopac local and protect Austin's most vulnerable and cherished natural and cultural resources. The months ahead will be decisive.