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Feds settle lawsuit with environmental Groups over Hays County water line

Monday, July 29, 2002 by

New development may be required to follow federal guidelines

The Lower Colorado River Authority and two federal agencies have reached an agreement with environmental groups that sued them over their alleged failure to protect endangered species in the Barton Springs watershed in conjunction with construction of the Dripping Springs water line. The Hays County Water Planning Partnership, the Save Our Springs Alliance (SOSA) and the Save Barton Creek Association (SBCA) filed suit against the US Army Corps of Engineers, the US Fish & Wildlife Service (FWS) and the LCRA in December 2000. The Corps of Engineers provides permits for construction projects that involve stream crossings, such as the water line. But the Corps did not consult with FWS about the impact of the water line on endangered species before issuing permits. That process is ongoing, because the pipeline is being built in stages.

Jon Beall, president of the SBCA, said the suit was filed because, “The Corps was not taking into account the effects that construction would have on endangered species,” like the Barton Springs salamander, the Golden-cheeked warbler and the Black-capped vireo. “They were just kind of administratively approving all the construction.” Under the settlement agreement, the Corps will consult with the FWS to determine whether serving a new development would have an impact and what can be done to ameliorate that impact.

Attorney Amy Johnson, who served as co-counsel with Bill Bunch of SOSA, told In Fact Daily, “We got what we hope are real enforceable water quality measures.” Although those measures will not be required of existing development, all new developments will be required to comply with those measures, Johnson said. The Corps and FWS agreed to consult on all projects where the Corps determines that construction may affect an endangered species. The agreement states that “the consultation will consider the direct, indirect, and cumulative effects caused by the permitted action in accordance with applicable law, regulation, and FWS and Corps guidance.”

Johnson said the agreement signed by the LCRA and FWS defined existing development as property that was platted at the time of the agreement. Any property platted or re-platted to provide for more lots after that date will be considered a new development. She expects the FWS to use water quality regulations already in place for the Barton Springs watershed that include limitations on impervious cover and setbacks from critical environmental features. The attorney described the FWS rules as very similar to the City of Austin’s SOS Ordinance. The engineer of any new development will have to certify to LCRA that the development complies with FWS water quality measures. “Before the water is turned on, they have to say it complies,” she said.

In addition, the federal agencies have agreed to a public education program within the watershed to increase awareness of the Endangered Species Act and to reduce the use of groundwater by those who are served by the pipeline.

The LCRA has specifically agreed to require limitations on groundwater pumping by developments that contract with the agency after the date of the agreement. In addition, the agency promised to “evaluate potential incentives with water customers to promote water conservation, such as conservation rates, rainwater harvesting incentives, etc.”

Joe Beal, General Manager of the river authority released the following statement: “LCRA is pleased that all parties have reached a settlement of the lawsuit concerning the northern Hays County water pipeline. In this settlement, LCRA has reinforced what it had committed to do all along through a Memorandum of Understanding with the U.S. Fish and Wildlife Service. That includes: • limit water service to existing development; • provide service to new development if that development meets environmental protection measures set by the U.S. Fish and Wildlife Service; and • support development of a regional plan for the area. We continue to believe that the water line will be a significant benefit to the people of Hays County, providing clean, reliable water to homes and businesses, while ensuring that the environment is protected.”

The settlement agreement, which has been signed by all the parties, awaits only the signature of Federal Judge Sam Sparks. The federal agencies have agreed to pay the plaintiffs $110,000 in attorneys’ fees.

Not many retirees have been worried enough to call

The city’s pension fund will not take the hit other municipal pension funds have suffered recently with stock market uncertainty because the fund is committed to conservative investment strategies, the pension fund’s director said late last week.

The City of Austin Employees’ Retirement System manages a portfolio of well over $1 billion on behalf of the system’s 10,000 contributing members. While the fund has suffered some losses with the downturn of companies like WorldCom and Enron, Catherine Harrington says the fund is doing well overall.

“We are very well diversified,” Harrington said. “We don’t have any large amount in any one security. While we did suffer losses—like every investor—we are in compliance with our investment policy . . . We’re long-term investors.”

The ERS mix is 32 percent fixed income, 16 percent international equities and 52 percent domestic equities. The fixed income comes from government-, corporate- and mortgage-backed bonds, rather than real estate investments or emerging markets.

“We have very conservative policies and a very conservative portfolio,” Harrington said. “I’m not aware of the investment plans for other pension systems, but I do believe that most public plans are going to be fairly conservative.”

The city’s investment policy is to place no more than 6 percent of the portfolio, or 4 percent at-cost, in any one stock. If the value of the holding increases to more than 6 percent of the total portfolio, the portfolio manager is forced to sell the stock. Annuity checks are based on a five-year average of portfolio’s performance.

In the traditional 401K plan, the employee takes the investment risk. In the pension fund plan, the city takes the burden of the investment strategy. Active city employees and two retiree representatives are on the pension fund’s board.

In addition, the pension fund has hired an outside investment consultant who is independent of the fund’s brokers to conduct regular assessments of the fund. The only responsibility of that consultant is to make sure the fund “stays the course,” says Harrington.

Harrington says she’s probably heard from no more than a half-dozen concerned retirees since the Enron scandal broke. Those who have called have been assured their annuity checks have not been affected.

The city has more than 2,500 retirees. City employees contribute an 8 percent pre-tax contribution to the fund. Benefits are based on a multiplier of the best 36 months of earnings while employed by the city.


Audit and Finance Committee meeting today . . . The City Council audit and finance committee meets today at 9am to talk about bond sales schedules, financial policies, a work plan for the City Auditor regarding Austin Energy and an action plan for Smart Housing. The committee will also hear a status report on affordable housing and a follow-up on the audit report of the Water & Wastewater Department’ s asset management . . . Annexation continues . . . This week the City Council will conduct public hearings on annexation of about 797 acres of land, most of which is in Travis County. The areas to be annexed include Walnut Creek Parks, McKinney Park East, Cameron Business Park and an area on Anderson Mill Road. In addition, the city plans to annex 118 acres in Williamson County in the area of Avery Ranch . . . Fort Worth annexing too . . . The Young Conservatives of Texas has called upon the Legislature to intervene in Fort Worth’ s annexation of 36 square miles of land in west and northwest Tarrant County. Texas cities have until Dec. 31, 2002 to annex areas without an election. After that, a new law goes into effect that will require a vote in the areas cities wish to annex. YCT claims the Fort Worth annexations are being done without appropriate due process, as required by the law . . . Activists want to meet with Land Commissioner . . . Land Commissioner David Dewhurst announced he would not stand in the way of the Longhorn Pipeline after Federal Judge Sam Sparks granted the pipeline’s request for summary judgment against the City of Austin. But pipeline activist Marguerite Jones is not giving up. Jones, who lives in southeast Austin, sent an email to Dewhurst late Friday asking him to meet with the anti-pipeline coalition. However, In Fact Daily assumes she expects no response since she wrote: “The people of this State should be able to speak to their Land Commissioner! Those of us who live by this time bomb are tired of weak excuses. Being out of town campaigning is not a good excuse. We will be waiting for your response!” . . . Republican facing unexpected challenge . . . Republican Ben Bentzin, running with plenty of energy and money but little experience, thought Green Party candidate Austin Dullnig would inevitably siphon off some of incumbent Sen. Gonzalo Barrientos’ support. However, Bentzin failed to notice possible trouble on the right from Libertarian Party candidate Marianne Robbins. Now Dullnig has withdrawn, having decided that his differences with Barrientos were not great enough to merit a race which might result in election of the Republican. Robbins has not waged much of a campaign so far, but a small percentage of voters—even three percent—could mean the difference between victory and defeat for the Republican. Barrientos should have an easier race with Robbins in the picture and Dullnig out, but it’s still too early for either candidate to plan a victory party. Harvey Kronberg’s has promised a full analysis of the race this week.

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


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