Appeals court upholds refuge, blocks reservoir

m An appeals court ruled last week in favor of the U.S. Fish & Wildlife Service and their efforts to establish a wildlife refuge on the Neches River. Conservation groups found themselves at odds with the City of Dallas, which wanted to see Lake Fastrill constructed on the same footprint for future drinking water.

The Neches River National Wildlife Refuge is one step closer to fruition thanks to a decision from the Fifth Circuit Court of Appeals.

On Thursday, the Court affirmed the July 2008 decision by Judge Jorge A. Solis in favor of the refuge.

The initial lawsuit was filed by the Texas Water Development Board and the City of Dallas, who hoped to block creation of the refuge in order to build Lake Fastrill, a reservoir, which the city predicts may be needed in 50 years.

"We are absolutely thrilled with the decision," said Janice Bezanson, Executive Director of the Texas Conservation Alliance. "This is what we hope will be the final step toward getting land for the refuge and getting it in place."

Ms. Bezanson said that TWDB and the City of Dallas claimed that the U.S. Fish and Wildlife Service, which created the refuge in 2006, did not conduct all necessary studies and had not adequately coordinated with state and local governments.

"The National Environmental Policy Act (NEPA) requires environmental and economic assessment as well as coordination with state and local governments on actions such as this," she said. "The court found that the USFWS had followed policies and guidelines and did everything adequately."

Dr. Michael Banks, co-chair of the Friends of the Neches River said that, barring any further appeal, this decision will lead to development of the refuge.

"Unless there's another appeal, which I doubt there will be, this will solidify the development of the refuge," he said. "The USFWS can proceed with acquiring more land for the refuge and can bring in a staff to develop it."

Dr. Banks said that the decision was an exciting one for him and for Friends of the Neches River.

"I think it's fantastic," he said. "It's been in my thoughts every day for the past three years."

Chris Bowers of the Dallas City Attorney's Office said that the city and the TWDB were "disappointed with the decision" and still assessing their options.

"One possible step would be to ask for a rehearing en banc, which means we'd have the case heard by all of the judges in the 5th Circuit," he said. "This decision was made by three judges, but a rehearing would be heard by 13-15 judges. Another option would be to petition the Supreme Court and our other option would be not to pursue any appeals."

Mr. Bowers said that the lake would have provided 100 million gallons of water per day to citizens of Dallas and 27 other customer cities that would have been served and that the local area around Lake Fastrill would benefit as well.

"Roughly 20 percent of those (100 million) gallons would have been set aside to any city in the vicinity that would have been interested," he said. "Historically, whenever we build a lake, we do that.

"In addition, Lake Fastrill would have provided economic, tourism and recreational benefits for people who live in the area."

Mr. Bowers said that he did not expect a decision on a possible appeal for another few weeks.

"The (Dallas) City Council is on break," he explained. "In addition, we will need to visit with the Water Development Board and the Attorney General's office to determine what our next steps will be."

Dr. Banks said that this decision would also help the effort to have the Neches River designated as a National Wild and Scenic River, which would preserve the river in its free-flowing condition and ensure that it would not be dammed or otherwise impeded.

"These two decisions are compatible," he said. "Having the refuge will help us in designation. We're in the process of making people aware of it, including citizens, our representatives and landowners. We're mustering support for designation."

Ms. Bezanson said that enthusiasm for the designation was growing.

"We're very pleased about the enthusiasm that is generating," she said, "particularly with the tourism industry, landowners and the conservation community who understands the importance of the river and its wildlife and water fowl life."

Ms. Bezanson also said that she hoped that the recent decision would mean the end of the case.

"Legally, they (Dallas and TWDB) can appeal to the Supreme Court, but we're certainly hoping that they won't," she said.

"The opinion was held unanimously. It's clear to us and it should be clear to everyone that the refuge was established in a proper manner and it's time we go forward with it."