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Rehearing does not convince majority

Tuesday, February 19, 2002 by

By Beth Nelson

The third time proved not to be a charm for Creedmoor-Maha Water Supply Corporation (CMWSC), which last week asked the Barton Springs/Edwards Aquifer Conservation District (BSEACD) to reconsider its pumpage permit increase. The request was denied in a 3-2 vote.

Currently, CMWSC is permitted to draw around 200 million gallons from the aquifer. They would have liked that number tripled to around 600 million gallons—the largest increase ever requested of the district.

CMWSC originally brought the request to the district late last year, but after two meetings, citizen input and objections from surrounding communities and environmental groups, the request failed because of a 2-2 board tie.

This most recent action failed again to garner favor with a majority of the district board. BSEACD Board members Jim Camp, Jack Goodman and Board President Craig Smith voted against the permit increase, with Board Vice-President Bill Welch and Board Secretary Don Turner voting for it.

According to the motion to reconsider filed by CMWSC attorney Mark Zeppa, CMWSC wanted the BSEACD Board to reconsider its permit change because they felt that “. . . failure to approve the pumpage increase as requested was an arbitrary and capricious act beyond the District’s lawful authority . . .” In order to substantiate that assertion, the motion claims that the BSEACD attempted to redefine the beneficial use provision of the Texas Water Code, which the motion asserts is the provision that trumps “. . . any definitions of the District’s rules or perceived definitions of individual Board members or their respective electorate constituencies.”

Texas Water Code defines beneficial use as those uses for: (A) agricultural, gardening, domestic, stock raising, municipal, mining, manufacturing, industrial, commercial, recreational or pleasure purposes; (B) exploring for, producing, handling, or treating oil, gas, sulphur or other minerals; or (C) any other purpose that is useful and beneficial to the user.

It is CMWSC’s position that the permit meets the beneficial use stipulation because the company would use the permit increase to substantiate a Rural Development loan from the U.S. Department of Agriculture. According to Zeppa and the motion, CMWSC needs the loan to fund new water lines to carry water from CMWSC’s well fields in the west to future growth in the east.

At an earlier meeting, Zeppa had told the board that CMWSC used 10-year growth projections to estimate water needs for the permit request. Smith then reminded Zeppa and the audience that the BSEACD District could only grant permits on a year-by-year basis and not ten years at a time.

At this meeting, Smith asked Zeppa if he thought that it would give CMWSC an unfair advantage over other permittees if the BSEACD granted its inflated permit request. Zeppa told Smith that CMWSC had shown that they have unique circumstances, because of financing requirements, which the district should take into consideration.

Welch said that he understood that, in subsequent years, the permit request would be significantly less (CMWSC must prove, in order to get the loan, that somebody is willing to provide them with such a large pumpage permit). And that, according to Welch, the lenders would not penalize CMWSC if the pumpage permit change after they get the loan. This would allow the district to grant this year’s pumpage request of around 600 million gallons and modify next year’s permit to more accurately reflect current water needs of the permittee.

“To me that constitutes fraud,” said Goodman who voted against the 400 million gallon increase, but claimed to have struggled with the decision. He said that he sees definite benefits to growth in areas that are not over the Edwards Aquifer recharge zone, which these yet-to-be-built-or-funded water lines would serve.

“I want to do everything I can do to make sure that you get your loan as a public person and private citizen,” said Goodman.

Discussion at last week’s meeting of the BSEACD focused mainly on what constitutes beneficial use, but CMWSC’s motion also cited a few procedural issues that CMWSC felt put them at a disadvantage. Also, it is CMWSC’s contention that regulating land use and development inspired Camp and Smith to vote against the permit increase, which is not within the board’s purview.

“My questions are motivated by our rules and bylaws,” said Camp, “not motivated by regulating land use.”

Attorneys for the City of Austin disagreed with CMWSC’s claim that they have met the requirements of beneficial use. The City of Austin was the only protestant that attended last week’s meeting. Other protestants, in addition to the City of Austin, include the Friendship Alliance, the Save Our Springs Alliance and the City of Buda.

Although the BSEACD didn’t grant the permit request as written, CMWSC didn’t walk away completely empty-handed after last week’s meeting. Camp moved to increase CMWSC’s permit by about nine million gallons. This increase is based on expected growth for the upcoming year. That motion passed 3-2 with Turner and Welch voting no.

Except for Sullivan, commissioners agree to postponement

City staff yanked zoning changes to the North Loop neighborhood plan only hours before the Planning Commission met on Wednesday night when a local property owner lodged a complaint about a possible conflict of interest.

Planner Steven Rossiter made no secret of the fact he had bought a home in the North Loop area about 9 months into the 18-month neighborhood planning process. The city’s policy on conflict of interest, Planner Ricardo Solis of Neighborhood Planning and Zoning admitted to commissioners, was fairly gray on the topic.

When property owner Jim Christianson lodged a complaint regarding Rossiter’s role this week, however, the department decided to pull Rossiter from the plan and assign another planner to finish the work, Solis said. Solis called it “an unfortunate situation.”

“At this point, it’s in our best interest to postpone the plan,” Solis told commissioners. “We’re in the process of reassigning staff.”

The delay will mean another 30 days before the Planning Commission hears the zoning changes. The new planner, Solis said, will meet with the neighborhood planning team to review the recommendations made by the group.

Resident Bill Yoder, who headed the North Loop planning team, waited patiently through three hours of testimony on other cases to tell the commissioners he had every faith in the planning process. After all the work—40 public meetings, countless e-mails, endless hours of walking and surveying the neighborhood—pulling the plan at the last minute “does feel like a setback,” Yoder told the commissioners.

“We thought we were ready for you, and what we’re learning is just how fragile this public planning process will be,” said Yoder, adding that the planning document was a “good product” and that Rossiter had done an excellent job for the neighborhood.

Solis also vouched for Rossiter’s character, but Chair Ben Heimsath said the city had to avoid “even the appearance of a conflict,” because it detracted from what the city was trying to accomplish in the neighborhoods. A postponement, he said, was inevitable.

Under the Planning Commission’s new policies, a neighborhood plan can be postponed if there is a “significant defect in the planning process,” Commissioner Maggie Armstrong told her colleagues. Not every commissioner agreed that circumstances were extraordinary.

Commissioner David Sullivan pointed out that Council members vote on a number of issues that impact themselves, including tax rates. He was the lone commissioner who voted against the delay. Sullivan encouraged city staff and the neighborhood planning team to take the intervening month to work with the handful of complaints lodged by property owners on the North Loop plan.

County hopes group can make recommendation in July

County Commissioners have reappointed a citizens committee on salaries for elected officials, so the group can come up with some long-term solutions for pay raises.

The Citizens Advisory Committee on Elected Officials Salaries—a 12-member task force with representatives from a broad range of backgrounds—recommended salary increases for all elected officials in the county last summer. In its final report, the committee stated it was close to coming up with “an institutionalized process” to recommend salary increases.

Christian Smith, executive director of the Planning and Budget Office, said the citizens advisory committee was intended to make salaries “as equitable as possible” based on a review of comparable officials’ salaries and the best judgment of the committee. That committee included representatives from unions, academia, the chambers of commerce and both political parties, as well as former grand jury chairs and former elected officials.

Pay raises for commissioners court members are being phased in over two years. Smith said it was time to reconvene but not with the next year in mind. Instead, the group wants to work on a model that can be used for future salary increases. The goal is to present initial recommendations before the Preliminary Budget is finalized in July.

The committee will be pared from 12 members to 9 members because of the difficulty in appointing former and current elected officials. Those who have committed to serving on the committee include Greg Powell, business manager of AFSCME; Del Watson, human resources director of Huston-Tillotson College; Woodward Springstube of Concordia University; Ashton Cumberbatch, representing local chambers of commerce; former grand jury chairs Henry Johnson and Tom McComb; Maxine Barkan of the League of Women Voters; and James Logan, representing the Republican Party. Scott Ozmun, chair of the Travis County Democratic Party, will appoint a representative for the committee.

During its first phase, then-former Council Member Gus Garcia and then-ACC board member Beverly Silas also served on the committee.

The mountain just got smaller . . . According to City Clerk Shirley Brown, incumbent Council Members Beverly Griffith, Jackie Goodman and Daryl Slusher need to provide valid signatures from 18,263 registered voters in order to be on the May 4th ballot. That’s five percent of the city’s 365,260 registered voters, minus those who have been suspended, presumably because they have moved or have not updated their registration. Previously, the number had been closer to 21,000. Council Member Beverly Griffith has already gathered 20,000. She said Monday she had not decided when to file those petitions. Both Goodman and Slusher seemed to be cheered by the news of the lower requirement. Slusher said Monday he believes they have about two-thirds of the signatures needed. Last fall, when the Clean Campaigns of Austin presented its petitions, five percent of the city’s voters equaled 17,961 . . . Retired officer to join Place 4 race . . . Billy Sifuentes, who retired from the Austin Police Department after more than 26 years on duty, says he will run against Council Member Beverly Griffith. Sifuentes told In Fact Daily he was running to ensure accountability for tax hikes, such as the one projected to occur next fall as a result of last week’s borrowing against future tax revenues. He said he would favor “planned management instead of crisis management,” although he praised both outgoing City Manager Jesus Garza and acting City Manager Toby Futrell. Sifuentes criticized the Council for buying back the 2nd Street block behind the new City Hall, rather than helping mom-and-pop businesses with tax breaks. He is 47 years old and currently works as Parts Manager for his former police buddy, Del Shaw, owner of Doug Scales Body Shop on South 1st Street . . . Environmentalists endorse Republican . . . Rancher Ira Yates, who is running for the seat vacated by Republican Commissioner Todd Baxter, has received endorsements from the Austin Sierra Club and Texas Clean Water Action. Yates Monday said, “I’m a conservative conservationist and proud of it. I believe that government should be in the business of keeping the peace, providing infrastructure and protecting our natural resources and that’s about it.” Also running for the Republican nomination is ROAD founder Gerald Daugherty . . . Not happening . . . The Zoning and Platting Commission will not be meeting tonight . . . The University of Texas School of Law Federalist Society presents . . . Robert George, Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, will speak on “Freedom, Reason, and the Rule of Law” at 1:30pm Wednesday at the UT Law School Auditorium. Call 453-7989 to RSVP or federalistsociety@yahoo.com. George is described by the Society as a leading opponent of human cloning. He was recently appointed by President Bush to the National Bioethics Council.

© 2002 In Fact News, Inc. All rights reserved.

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