Sierra Club v. Lynn

• Decision Date: 04 October 1974
• Docket Number: No. 73-3378,73-3378
• Citation: 502 F.2d 43
• Parties: , 4 Envtl. L. Rep. 20,844 SIERRA CLUB et al., Plaintiffs-Appellants-Cross Appellees, Edwards Underground Water District et al., Intervenors-Appellants-Cross Appellees, v. James T. LYNN, Secretary of the U.S. Department of Housing and UrbanDevelopment, et al., Defendants-Appellees-Cross Appellants, San Antonio Ranch,Ltd., Defendant-Appellee-Cross Appellant, Texas Water Quality Control, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 43

502 F.2d 43

7 ERC 1033, 4 Envtl. L. Rep. 20,844

SIERRA CLUB et al., Plaintiffs-Appellants-Cross Appellees Edwards Underground Water District et al Intervenors-Appellants-Cross Appellees, v. James T. LYNN, Secretary of the U.S. Department of Housing and UrbanDevelopment, et al., Defendants-Appellees-Cross Appellants, San Antonio Ranch,Ltd., Defendant-Appellee-Cross Appellant, Texas Water Quality Control, Intervenor.

No. 73-3378.

United States Court of Appeals, Fifth Circuit.

Oct. 4, 1974, Rehearing and Rehearing En Banc Denied Nov. 19, 1974.

George P. Parker, Jr., Jon C. Wood, Ferd C. Meyers, Jr., San Antonio, Tex., for Edwards Underground Water Dist.

Keith W. Burris, San Antonio, Tex., Bruce J. Terris, Washington, D.C., for Bexar County.

Phillip D. Hardberger, San Antonio, Tex., for Sierra Club and others.

Hugh P. Shovlin, Asst. U.S. Atty., William S. Sessions, U.S. Atty., San Antonio, Tex., for J. T. Lynn, and others.

Seagal V. Wheatley, San Antonio, Tex., (Carl R. Teague, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., San Antonio, Texas, on the brief), for San Antonio Ranch, Ltd.

M. Lynn Taylor, Asst. Atty. Gen. of Tex., Environmental Prot. Div., Jerry Hill, Austin, Tex., for Tex. Water Quality.

Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.

CLARK, Circuit Judge:

An offer of commitment by the United States Department of Housing and Urban Development (HUD) to guarantee an 18 million dollar private bond issue for the development of San Antonio Ranch New Town (Ranch) spawned this environmentalist litigation against defendants James T. Lynn, Secretary of HUD, and San Antonio Ranch, Ltd., the developer. Charging violations of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., and the Urban Growth and New Community Development Act of 1970 (Title VII), 42 U.S.C. 4501 et seq., four citizens groups (the Sierra Club, Citizens for a Better Environment, League of Women Voters of the San Antonio Area, and American Association of University Women, San Antonio Branch) and their individual members, as plaintiffs, sought declaratory and injunctive relief barring defendants from issuing or accepting either the bond guarantee or any other federal assistance supporting development of the Ranch until the proposed project complied with NEPA and Title VII. Thereafter, the district court permitted the Texas Water Quality Board to intervene on behalf of the defendants, and the Edwards Underground Water District, which had intervened a long with Bexar County, Texas on behalf of the plaintiffs, amended its original complaint to allege that development of the Ranch also contravened the Water Pollution Prevention and Control Act Amendments of 1972, 33 U.S.C. 1251 et seq.

Depending upon which party's view is accepted, the Ranch will be either an urban planner's utopia incarnate or an environmental disaster of the first magnitude. As conceived by the developer, a limited partnership composed of individuals experienced in real estate, construction, financing and new town management, the Ranch will convert 9,318 acres of predominantly virgin Texas hill country land in the northwest quadrant of Bexar County, Texas into a 'free standing' new community of 87,972 residents living in 28,676 housing units (41%-- single family detached houses, 6%-- townhouses, 45%-- medium density apartments, and 8%-- high density apartments), of which one-fourth will accommodate low and moderate income families, through staged construction over a 30-year period. The Ranch site, which is presently virtually undisturbed and primarily used for ranching, grazing and occasional hunting, is dominated topographically (85%) by hill country and rocky soil characterized by 100 to 200 ft. differentials in elevation. The southern 1200 acres (15%) consists mainly of flat terrain and agriculturally productive soil. An expanding network of regional highways serving the area will be supplemented by an external mass transit system connecting the Ranch to downtown San Antonio, approximately 20 miles away, the South Texas Medical Center, a distance of 10 miles, the University of Texas at San Antonio, a 6-mile trip, and the San Antonio International Airport, currently a 25-minute drive. The developer will contract for essential municipal services and public utilities with the City of San Antonio, whose City Council has adopted a resolution favoring eventual annexation of the entire project.

More than half of the Ranch acreage will be devoted to residential development and internal roads. The project contemplates over 2200 acres of open space, which includes a 2,000 acre greenway system, two 18-hole golf courses, three recreational use lakes, neighborhood recreation centers with swimming pools and tennis courts and a continuous hiking and bicycle trail system. 12,750 employees are expected to work in two industrial and research and development parks totaling 1,234 acres. A 500 acre vocational training and technical center, featuring public or private affiliated educational and training facilities, will staff 430 employees, and it is estimated that 4,480 persons in public jobs will service the Ranch population. Of the 180 acres set aside for commercial use, 150 acres will be devoted to a town center that will act as the gateway to the entire Ranch, providing the focus of civic, entertainment, office employment and shopping activities. Two educational parks and 13 elementary schools sites will cover 330 acres. In general the land use plan seeks to take maximum advantage of the area's variation in topography by clustering common or public facilities along an 'activity belt,' a major right-of-way loop that envelopes the community and laces its components together. The center of the Ranch forms a residential island and the network of canyons affords the basis for a continuous green belt system that will permit a person to bicycle or walk or horseback ride from the town center to any point within the ranch without crossing a major throughfare.

The spectre of environmental doom is raised by the fact that the proposed development lies astride a portion of the zone of land which takes surface waters to the Edwards Aquifer, an underground water bearing formation that is the sole water supply for the City of San Antonio and 1,000,000 area residents. The aquifer region has been estimated to be approximately 175 miles in length with a varying width of 5 to 45 miles, encompassing a crescent-shaped surface area of 3 1/2 million acres that extends over more than 7 counties. Ground water flows freely (in terms of miles per day) in an esterly direction through the Edwards formation of extremely permeable limestone, which averages 500 feet in thickness, until it is cut by the Balcones fault system. Northwest of the fault the surface limestone is upthrown to form the Edwards Plateau. In this region, honeycombed with fissures and cracks, ground water percolates through the stratum and is found under normal, unconfined water-table conditions. Southeast of the fault line, however, the limestone formation is downthrown, sloping from a surface recharge area near the fault line south and east hundreds of feet below the surface, and overlaid with less permeable and younger rocks, which confine the ground water in the underground reservoir from which San Antonio draws its water supply.

The artesian reservoir is replenished annually with approximately 500,000 acre feet of water from three major sources. Most of the recharge is attributable to 14 surface streams on the Edwards Plateau that flow across fractures and joints in the fault zone, through which water filters down to the aquifer. This recharge zone varies in width from 1/2 to several miles and extends 80 or more miles above the Balcones fault system. It consists of many small pores and fissures inlaid among less permeable material. The second major source is underflow from one area of the reservoir that recharges another. Least significant is the recharge produced from rain falling directly on the exposed 'outcrops' of limestone in the upthrown region. This precipitation seeps through honeycombed passages and eventually filters its way into the reservoir.

Plaintiffs contend that if water entering the recharge zone is polluted, the entire aquifer will become contaminated. The Balcones Fault dissects the Ranch site latitudinally at the Haby Crossing Fault. Only about 13% Of the annual rainfall on the site is eventually introduced to the underground reservoir. The rest is consumed by vegetation, evaporated or removed as surface run-off. Since none of the 14 major stream beds or recharge areas is located on the Ranch, the recharge emanating from the Ranch is generally estimated at only one-half of one percent of the total annual recharge to the aquifer.

The Ranch moved from the drawing board to the bureaucracy when the developer approached HUD in February of 1970 to explore the possibilities of federal assistance under Title VII. Marketing studies had shown that the development envisioned by the preliminary master plan would capture 15% Of Bexar County's projected growth. During the prior decade almost half of the county's total population increase (143,000) had occurred in the northwest quadrant, whose influx of residents was expected to continue. Favorably impressed with the planning studies and pre-application proposal, HUD invited the developer to submit a formal application. Eight months later HUD's Office of New Community Development received the formal application and fee of 5,000 dollars and undertook a full agency review of the project.

Early concern for the integrity of the aquifer surfaced in many quarters. At HUD's suggestion the developer retained a geologist-hydrologist, Dr. L. J. Truk, to examine the project. A review of the Ranch was conducted by the Alamo Area Council of Governments, a regional multi-governmental planning organization composed of 16...