Naked City

The Save Barton Creek Association heads to the courthouse on Wednesday to challenge a state agency's alleged practice of discouraging public input in matters of environmental concern.

SBCA is appealing last year's decision by the Texas Natural Resources Conservation Commission to deny the group's request for a hearing to contest a wastewater disposal permit for the Bradfield Tract: a 20-plus acre site owned by Prentiss Properties Acquisition Partners, a Dallas-based real estate investment trust with primary interests in office projects in about 200 U.S. cities.

Prentiss plans to build a 211,000-square-foot office project -- the Park at Barton Creek -- on the property. The site, at the southeast corner of Loop 360 and MoPac, is just uphill from the creek, in the hypersensitive recharge zone of the Edwards Aquifer, but it's "grandfathered" under environmental laws less stringent than Austin's Save Our Springs Ordinance. With the exception of the two major roadways to the north and west, the property is almost completely enveloped by the Barton Creek Greenbelt. And the project's wastewater discharge system would be located some 400 feet up the hill from the creek.

About five acres of trees and brush have already been cleared for the project, though it is now apparently stalled by the economic downturn.

Idle construction site or no, arguments from all sides of the conflict will be heard at 1pm, Aug. 15, before District Court Judge Scott Jenkins, a Democrat who won strong environmental support in his first bid for election last November.

David Frederick, an environmental lawyer representing SBCA, thinks this is a pretty clear-cut case. "In the past four years, TNRCC has had a practice of attempting to discourage public input," he said. "But the agency has been reversed six times in state court," he added, referring to previous TNRCC decisions denying requests for hearings on permit applications. Next week, Frederick is hoping for a seventh reversal in the matter of an environmental group vs. TNRCC. "We at least want to have the opportunity to conduct a hearing on this permit," he said. "As the agency and Prentiss Properties see it, it's an itty-bitty amount of wastewater discharge -- 8,000 gallons [daily], which is not a big discharge. But this is an unusually sensitive area that we're talking about."

TNRCC spokeswoman Karen Goelkel said the agency made the right decision in rejecting the association's request for a hearing. "The permit," she said, "addressed all of the association's stated concerns, and the proposed system would not present an appreciable risk of harm to the environment or to the association's members." Addressing Frederick's claim that the agency routinely nixes public input in the permitting process, Goelkel said: "The law is very specific on who has legal standing in a contested case hearing. We look at each individual request, we look at the law, and if that person is legally entitled to a hearing, the commission will grant the hearing request."

In petitioning the commissioners for a hearing, SBCA argues its legal standing this way: Contamination of the creek and Barton Springs "would adversely affect the many members of [SBCA] -- among them Tim Jones -- who use Barton Creek and its creekbed … for hiking, photography (including videography), canoeing, swimming, and research."

Jones, a longtime activist, is widely known as a tenacious environmental watchdog whose weapon of choice is a camera, which he uses to document contamination and other potential hazards along the creek. "This contamination," the petition continues, "will also adversely affect those members … whose research interests depend, in part, on the survival of the endangered Barton Springs Salamander, a creature that is very sensitive to changes in its environment -- and which is found only at the outflow of Barton Springs. Members … who swim at the pool at Barton Springs would also be adversely affected by contamination originating at the proposed disposal site."

The city had originally joined SBCA in petitioning for a hearing, but withdrew its protest after a series of secret negotiations with the developer. Frederick said SBCA wasn't invited to participate in the negotiations and wasn't even aware of the talks until the dealmaking was nearly finalized in September of last year.

Previously, local developer Gary Bradley had sought to use the Bradfield property as a bargaining tool to help him change an unprecedented deal he made with the city in the spring of 2000. Bradley had offered to buy the property from the Bradfield Family Partnership and donate it to the city in exchange for more latitude on the size of companies allowed on his Circle C property. Bradley's offer fell through, and Prentiss Properties went on to become the sole owner of the Bradfield property.

Terrence Irion, an Austin attorney representing Prentiss, was out of town at press time and unavailable for comment.