Friday, July 6, 2012
Developer misses deadline
By Cyndi Wright
July 6, 2012
With the dawning of July 1, a collective sigh of relief may have been heard from the area in Cedar Creek where Austin developer Jim Carpenter has plans to build an airport.
But it’s not really clear whether vocal and organized opponents of the project can let down their guard yet.
The firm of Carpenter & Associates plans to build Central Texas Airport on approximately 1,000 acres located off FM 969, across the Colorado River from Hyatt Lost Pines Resort and a few miles north of Cedar Creek High School.
However, in his Section 381 economic development agreement with Bastrop County, which, according to Carpenter, gives much-needed tax rollbacks to the project, a June 30, 2012, deadline date to commence “turning dirt” on Phase 1 of the project has passed with nary a clod being moved.
But a law firm representing Carpenter & Associates has sent a letter to the county, invoking the “force majeure” clause of the agreement and stating that due to the delay resulting from causes beyond the reasonable control of the party, their client’s commencement of the project has been delayed by one year. The letter blames the delay on required approvals from the U.S. Army Corps of Engineers that have not been forthcoming.
“Most contracts have a force majeure clause,” said Ronnie Moore, county engineer. “It cites things that are beyond your control as an impediment to performance.”
Delays blamed on USACE
According to the letter, Carpenter & Associates only learned of regulatory approvals needed for the airport project from USACE in December 2010. County residents first learned of the proposed project in March 2009 in an article in the Advertiser. But the USACE says it contacted CTA on Oct. 29, 2010 and a meeting between the airport developers and USACE was held Nov. 22, 2010.
“Unfortunately, the client has experienced delays beyond its anticipation and control in obtaining approval from the USACE permit application that has now surpassed 16 months of ongoing review and requests for additional information and studies…our client probably will not satisfy the deadlines due to delays caused by the USACE,” the letter from lawyer Patrick W. Lindner states.
But opponents of the airport project are quick to point out that, in their opinion, Carpenter has not only had plenty of time to respond to requests from the USACE. Opponents say the environmental consulting company he hired to represent him in that application should have known what the Corps needed since they have done this kind of work before.
Darlene Pendell, representing Groups United to Advocate Responsible Development, or GUARD, read a prepared statement to Bastrop County Commissioners Court at their regular meeting on June 25.
“To build the proposed airport, discharge dredge and fill material will be dumped into 9.42 acres of jurisdictional waters of the United States, the Colorado River and/or tributaries 8 and 9,” Pendell said. “The United States Army Corps of Engineers issues individual permits for that action.
“Aci Consulting, on behalf of Carpenter and Associates, and a representative from the U.S. Army Corps of Engineers visited the site of the proposed airport on Dec. 15, 2010 and again on May 20, 2011. The meetings took place 18 months and 13 months respectively before the phase one deadline. An Environmental Information Document was prepared for the Army Corps of Engineers and submitted by Aci Consulting on behalf of Carpenter and Associates on Aug. 18, 2011. Aci Consulting received a response from the Army Corps of Engineers in a letter dated Sept. 7, 2011, nine months before the phase one deadline of the 381 agreement.”
According to Pendell, in January 2012, Aci submitted a second EID allegedly to answer 23 subjects that were either not included in the original document or subjects that needed additional information in order for the Corps to complete the permit evaluation.
“The applicant, Mr. James Carpenter, could have avoided the delay of the permitting process by addressing all of the regulations of USACE in the original EID submitted to the Corps by Aci Consulting, an agent of the developer,” Pendell said. “The commissioners may be familiar with other work that Aci Consulting completed in Bastrop County. It is unexplainable why an environmental consulting firm wouldn’t include 23 separate subjects in the original EID submitted to the Corps.”
Mitigation plan not adequate
Correspondence from the planning, environmental and regulatory division of the Fort Worth District of the USACE seems to indicate that authorities first became aware of the airport project through numerous citizen complaints, rather than through an application by Carpenter or Aci Consulting for a necessary environmental assessment called for under the National Environmental Policy Act of 1969.
“In mid to late October 2010, my office began receiving numerous calls from concerned citizens regarding a proposed airport to be located in Bastrop County,” wrote Stephen Brooks, chief, regulatory branch, in a letter to Carpenter dated April 19, 2012. “In an effort to determine if the project would require a Section 404 permit, my staff located CTA’s website and on Oct. 29, 2010, contacted the CTA to invite them to consider requesting a pre-application meeting to discuss their proposal.”
According to the letter, a pre-application meeting was held Nov. 22, 2010, and Aci subsequently submitted a standard individual permit application on Jan. 18, 2011, which included a delineation of waters of the U.S. performed in 2008.
USACE issued a public notice on the permit application on March 25, 2011, and received a total of 61 comment letters, including 52 requests for a public hearing. Roughly a year before the phase 1 deadline, Carpenter & Associates received a letter from USACE stating that the mitigation plans outlined by Carpenter and Aci Consulting were not adequate.
“On May 20, 2011, a letter was sent to your consultant, Aci Consulting, affording you the opportunity for resolution or rebuttal to all objections and/or recommendations received on the proposed project,” Brooks said in the letter. “U.S. Environmental Protection Agency, Texas Commission on Environmental Quality and Texas Parks and Wildlife all commented that your mitigation plan was not adequate. At that time, we also reminded you for the need to submit an EID, a 404(b)(1) analysis and an alternatives analysis. The CTA and Aci were previously informed of the need for these documents during the Nov. 22, 2010 pre-application meeting.”
According to the letter, Aci submitted a revised EID on Jan. 24, 2012, however, in a telephone call between Brooks and Carpenter on Feb. 28, Brooks says he told Carpenter that the USACE accepted the EID as enough information to continue their review, however, the understanding was predicated on receiving a revised mitigation plan.
“During the pre-application meeting on Nov. 22, 2010, the CTA and Aci were informed that permit timelines are most often delayed for three main reasons: inadequate information from applicants and consultants; delayed responses from applicants and consultants; and required coordination for Endangered Species and Historic Properties,” Brooks said. “The proposed project would not impact any Endangered Species or Historic Properties. To this date (April 19, 2012), the USACE still does not have complete and adequate information needed to complete our review, including an adequate mitigation plan.”
Brooks goes on to point out that, additionally, public comments relative to light pollution from the proposed airport were not addressed in Aci’s response to public comments, this subject also still needs to be addressed.
In response to CTA’s invocation of the force majeure clause in the 381 agreement with the county, Moore said that matter is now in the hands of the county’s contracted legal services firm, Bickstaff, Heath, Delgado, Acosta LLP.
But he emphasized that invoking a force majeure is not the same thing as getting an extension on the June 30, 2012 deadline.
“If it is a valid cause for delaying the project for an amount of time, then under contractual law, the party should get that amount of time added,” he said. “It’s not an extension, it’s just not getting penalized for forces outside of your control.”
Moore also said that the county’s legal firm sent a letter to CTA’s lawyer asking for more information in order to determine if they feel the delay is a valid force majeure claim.
In the letter, dated June 18, lawyer Thomas Pollan writes, “Your letter refers to an April 19, 2012 letter from the U.S. Army Corps of Engineers that you contend placed new, additional requirements for approval. Your letter does not contain any documentation in support of the claim of force majeure, and the USACE April 19, 2012 letter does not tend to support the existence of force majeure.”
“They have to prove it,” Moore said. “We’re just being cautious. This is a contractual document so we are having the attorneys look at it now to make sure we are on solid legal ground.”
But according to Pendell and other opponents of the proposed airport, non-performance should not be confused with force majeure.
“The courts will not excuse non-performance if it could have reasonably been foreseen that the action of Mr. Carpenter or his agent would cause governmental delay,” Pendell told commissioners.
Phone calls and emails from The Bastrop Advertiser were not returned by press time from Carpenter & Associates or CTA.
See Saturday’s issue of The Bastrop Advertiser for a timeline of events surrounding the proposed airport.